Sexton v. Wood ( 1835 )

Wilde J.

delivered the opinion of the Court. The first ground on which the defendant relies in support of his motion for a new trial is, a supposed variance between the note declared on, and that which was given in evidence. The note produced by the plaintiffs is in common form, and is payable n money, as set out in the writ. But the defendant contends, that it was in fact payable in goods, and that an agreement to that effect was made between the p⁢es at the same time when the note was given ; and so that the note and agreement were parts of the same contract, and that the plaintiffs were bound to set it out in full. This objection would be well founded, if the- agreement were that the note should be payable in goods, and that such was the promise of the defendant. But the agreement contains no such promise. The plaintiffs agreed to receive payment in goods ; but it was left to the defendant’s option, whether he would avail himself of that privilege or not. His promise was to pay in cash, and the plaintiffs must have failed if they had declared on a promise to pay in goods. It is however contended, that the plaintiffs were bound to set out the entire consideration of the promise, and that the privilege of paying in goods was a part of the consideration. It might be a sufficient reply to this argument, that in a declaration on a note of hand it is not necessary to set forth the consideration particularly ; but it is clear, we think, that the agreement as to the mode of payment was no part of the consideration. It was either an independent con tract, or matter of defence ; and in either case the plaintiffs were not required to set it out in the declaration.

The next ground on which the defendant’s counsel rely is, on the exceptions to the instructions to the jury. It appeared in evidence, that at the time of the conveyance of the real estate to the defendant, there was a doubt as to the title conveyed, arising from some secret attachments ; and that after wards the plaintiffs caused the equity of redeeming the real estate to be sold on execution, in order to avail themselvps of the benefit of an attachment made prior to the conveyance from them to the defendant, and thereby to confirm the de fendant’s title. One of the plaintiffs became the purchaser of the equity ; and there was evidence tending to show, that this was done with the approbation of the defendant, in pursuance of the original understanding of the parties.

On this evidence the jury were instructed, that if they were satisfied that the equity of redemption was purchased by the plaintiffs with the knowledge and approbation of the defendant, and with an understanding between them, that it was to be done for the purpose of making good the title of the defendant, and that the plaintiffs offered to convey to him the title so purchased, this would not operate to discharge the defendant from his liability on his note. These instructions appear to us to be perfectly correct, and render the other questions raised at the trial immaterial. For as the jury, under these instructions, have found, that the plaintiffs offered to convey to the defendant the title, if any, acquired under the sale of the equity, it is of no importance whether tne purchase would enure to the defendant’s benefit without any new conveyance or not. And it is clear, that as the defendant refused to receive a release of the equity, and to perform his contract, the plaintiffs had a good right to enter on the estate and to convey the title obtained under the execution, if any they had, and to indorse the proceeds of sale on the defendant’s note, in order to secure themselves pro tanto, the defendant having before conveyed all his property. The sale of the equity was with the defendant’s consent, and for his benefit ; and when he refused to take a release from the plain tiffs, how can he complain if his title has thereby been defeated ? It appears, however, that his title has not been defeated. For it seems, that the sale of the equity was void for want of legal notice of the time and place of sale ; and that the sale by one of the plaintiffs to a third person passed no estate, as he was not the purchaser at the sale at auction. The defendant’s title is therefore good ; but if not, the defect has arisen from his refusal to accept a release ; and he cannot take advantage of his own wrong. Nothing has been done by the plaintiffs which can authorize him to rescind the contract.

Judgment on the verdict.