Clark ex rel. Louisa County v. O'Loughlin , 1 Morris 375 ( 1844 )

Per Cdriaji,

Mason, Chief Justice.

This suit was brought on two promissory notes given by the defendant to the plaintiff for the uso ot the county of Louisa. Certain town lots were sold by Clark as agent for the county, to O’Loughlin, upon the following terms : one-eighth in cash down, (which amount was paid accordingly) the remainder in three equal enstalments, at periods of six, twelve and eighteen months, for which O’Loughlin gave his promissory notes. It was further agreed that upon the payment of the whole purchase money, he was to receive a warranty deed, but, if he should' fail to pay either of the two first notes when due, they were to draw twenty per cent interest from that time until paid, and if he should fail to make full payment of all the notes when the last became due, with the interest thereon, that then I he said lots should revert to the county, and the purchaser should forfeit such sums of money as he might have paid thereon. The present suit was ought i i th ese notes before the third fell due.

The onlv question in the case, is, to determine the legal effect of tins contract. Had the defendant the right to forfeit all he had paid, and thus exonerate himself from further liability ; or was the enforcement ol the forfeiture left to the option of the plaintiff,? We think the latter is clearly the case. The contract consisted of two parts. The defendant gave his promissory notes absolute on their face, which, by the law of this territory, might be negotiated, and in the hands of an assignee would at all events have been collectable. That fact of itself would seem sufficient in the absence of contrary proof, to show that the defendant intended to bind himself absolutely to pay the money'. He then takes a bond from 'the plaintiff, with the conditions above set forth. Suppose suit had been brought on the first note as soon as it became due, must the plaintiff wait till the maturity of the last note to ascertain whether tbs defendant is (hen going to fail to make payment and suffer a forfeiture of what he has paid, or may he obtain judgment immediately ? Certainly the latter. The same may be said also of the second note. The plaintiff then clearly had a right of action in relation to these notes, as sgoo as they became due, and if he recovers judgment before the maturity of the third note, that judgment will be certainly valid. Will the delay in obtaining judgment until after such maturity divest a right valid until that time? We can give no satisfactory interpretation of this contract, otherwise than by regarding it as absolute on the part of the defendant, that he will pay the money when it becomes due. If not so paid, a suit may be brought therefor. And if unpaid at the maturity of the last note the plaintiff may regard the land as reverting, and the amount paid as forfeited, or he may waive his right of reversion and bring suit on the notes. At all events on the two set forth in the declaration, in this case.

We think therefore, the decision in the court below was erroneous. Judgment will therefore be rendered for the the plaintiff according to the agreement of counsel in this case, and the clerk will be directed to assess the damages.