11 Mo. 79 | Mo. | 1847
delivered the opinion of the Court.
This was an action of assumpsit brought by Condit against Clark on a note payable by instalments for the sum of $377. S. Wright had conveyed to Condit a quarter section of land on which there was a mortgage to Wright executed by Condit for the sum of $375. Condit after-wards sold one-half of the quarter section, for $400, to Clark, who executed the note sued on for the part payment thereof, which contained a stipulation that the instalments, as they became due thereon, should be paid by Clark to Wright — the instalments of the note and those of the mortgage being made payable concurrently in point of time. Clark neglected to make the payments as stipulated, the consequence of which was, that the mortgage was forfeited and suit was brought to foreclose the equity of redemption of Condit in the whole quarter section. There was a decree of foreclosure, and a sale, at which Clark became the purchaser of the whole quarter section, for the sum of $530.
The defence of Clark to the note was a failure of consideration.— There was a judgment for the plaintiff, Condit.
We are not prepared to say that there is a failure of the consideration of the note. Clark agreed to give $400 for the half of the quarter section, and has now, by a failure to comply with his contract, obtained the whole of it for $530. We see no principle of morality or justice on which his defence can be sustained. The small excess of the sum of the mortgage over that of the note executed by Clark, and on which this suit is brought, does not, in our opinion, affeetthe question between the parties.
the judgment will be affirmed.
