Cooper v. King ( 1887 )

Reck, J.

I. The answer alleges, in substance, that defendant bargained with plaintiff for the purchase of her interest in certain tracts of land containing 240 acres, agreeing to pay therefor $1,000 cash, and gave his notes for the balance of the consideration for the land; that defendant performed his part of the agreement by paying the $1,000 cash, and executing the notes in suit; that plaintiff'agreed to convey her interest in the land to defendant upon the payment of the $1,000, and the execution of the notes; that she has conveyed her interest in a part of the land, less than one-half of it, to defendant, and refuses to convey to him her interest in the other part; and that the interest conveyed is not of the value of $1,000, the cash paid by defendant on account of the purchase. He alleges upon these facts that the consideration of the notes has failed. It does not appear that defendant is in possession of the land purchased of plaintiff.

II; We. think the demurrer was erroneously sustained, for these reasons: (1) As the conveyance of the land was to be made upon the execution of the notes, the obligation of the defendant to pay the notes is dependent upon the performance of, or an offer to perform, her contract. (Berryhill v. Byington, 10 Iowa, 223.) (2) The answer shows that no part of the consideration of her notes has been received by defendant, for it is alleged that the land conveyed is not of the value of $1,000, the cash paid. Defendant, therefore, has received nothing for the notes, and plaintiff, as is alleged in the answer, refuses to convey the land as she obligated herself to do. The conveyance of the land is the consideration of the notes. It has not been made. Defendant, therefore, has received nothing for the notes. The answer shows a failure of consideration.

The judgment of the court below sustaining the demurrer is Reversed.