Swan v. Ewing , 1 Morris 344 ( 1844 )

Per Curiam,

Mason, Chief Justice.

The first question we shall consider is, whether the parol evidence of want of consideration was properly admitted in the court below. That evidence was to the effect that the notes on which suit was brought, were given to secure a part of the purchase money for a certain lot of ground in Iowa City, which had been purchased at a public sale of lots, and that by fraud or mistake of the acting commissioner, a receipt was given for a different lot, while the one actually purchased was afterwards sold to another person.

This evidence was clearly admissible. It will not be disputed that in a case like the present, the defendant is permitted to show that the notes were given without consideration. Scarcely anything is more common in our courts than such a defence sustained by such proof. This is really all that was done in the present case, so far as respects the matter we are now considering. The lot was purchased, the notes executed therefor, and then before any deed or written evidence of sale had been executed, the lot was sold to another individual. Mere is a total want of consideration. The fact that a receipt was executed to the defendants for another lot does not change the aspect of the case. The purchaser was under no obligation to accept of any lot except that which ha had bought.

The fact that thecommissioners were a corporate body, or were required to keep a record, makes no difference in this respect. No party is permitted to make evidence for himself; much less will he be allowed to make evidence which the other party will not be permitted to contradict in the ordinary mode.

It is further objected that the defendants were allowed to introduce the written conditions of the second sale, without it being shown by sufficient evidence that they were the conditions of the first sale. Neither does it sufficiently appear by the record that the lots were sold at the first sale. Bui even if that had appeared, we think the substantial identity of the conditions of the two sales was sufficiently shown by the writ-en admission of the acting commissioner, to whom the notes were executed and in whose name the present suit was brought.

The only remaining question to be considered, is in relation to the eetoff which the defendants were permitted to prove, and under which they recovered a verdict. It is objected in the first place that the notice is not sufficiently definite. We think otherwise. The notice sets forth that the defendants claim the money paid by them at the time ‘.hey made their purchase, amounting to twenty-five per cent of the entire price they were to have paid for the lot. They claim that this amount is due them from the said plaintiff. Ñowj Swan himself, individually, is not the plaintiff. The demand is against him as commissioner.

Again it is said that this claim cannot be set off because the respective demands were not mutual at the time the suit was commenced. We should find it difficult to conceive what demands were mutual if these were not so. A lot is sold by a duly authorized commissioner. One fourth part of the money is paid down and notes given for the balance. Suit is brought on these notes which the defendants not only refuse to pay but they claim back the amount already paid. They claim their setoff out of' the same fund into which (heir money is to be paid if recovered in this suit. On the one hand it is claimed that they are indebted to this fund, on the other that the fund is indebted to them. The demands are mutual.

Finally, it is insisted that the set off is not in the same right as the demand, because if the contract is void on account of the mistake in regard to the lots, then the money paid to Swan was received in his own right. This by no means follows. The lot was sold by Swan as commissioner, the money paid to him as such. It is to be presumed that he did his duty and placed the money among She funds of the real plaintiff m this suit. That plaintiff has sanctioned the act of the commissioner by bringing this suit and urging the payment of the remainder of the money claimed to be due by virtue of this sale. It would be wholly unjust to allow this plaintiff, while thus waging the war on the one hand, to claim exemption from liability on the other.

Wo therefore think there was no error below.

judgment affirmed.