1 Miss. 115 | Miss. | 1822
OPINION OF THE COURT — BY
This action was instituted oh a note of hand, made by Huldah S. Covington, now the wife of defendant, Thomas Calvit, and by John Vandervall, dated 14th of October, 1818, for two thousand dollars, payable to plaintiff, first of January, 1820. It appeared in evidence, under the general issue, that this note had been given in part consideration of a tract of land, sold by plaintiff’s agent to Mrs. Covington, then a feme sole, and defendant contended, that there had been a partial failure of consideration, and fraudulent misrepresentations in effecting the sale, which would entitle him to a reduction of the amount stipulated for payment, jThq judge submitted to the jury the questions: 1st., Whether the land was sold in gross or per acre: 2d. Whether there were fraudulent represen-tions on the part of plaintiff’s agent? The jury found ja verdict for eight hundred dollars and twenty-five cents, and plaintiff moved for anew trial for reasons filed, which question is referred. It is conceded that the deed contained a warranty for not more than 240 or 250 acres, neither
In Hawes vs. Baker, 3 Johnson’s Rep. 506, the marginal summary of the principles of decision is, “where B. by articles of agreement covenanted to sell and convey to II. a tract of land, at nine pounds per acre, and a deed was accordingly executed, and the purchase money paid according to the quantity of acres expressed in the deed, it,was held, that no parol evidence was admissible to shew, that there was a mistake in the quantity mentioned in the deed, and that an action for money had and received, to recover back the money paid for the number of acres alleged to be deficient, was not maintainable.” Considering the cases analagous in principle, we shall adopt the language of Thompson, judge. There is no instance of any fraud having been practised on the plaintiff. The most that can be alleged is, that there has been a mistake with respect to the insertion of the consideration money in the deed. The contract between the parties, according to the articles of agreement, was executory, and having been executed and consummated by the deed subsequently given, the agreement became null and of no further effect. This is not like the case of Waiver vs. Bentley, 1 Caines’, 48. The court there sustained the action for money had and received, on the ground that the defendant having altogether failed to perform the contract on his part, the plaintiff had his election, either to proceed on his covenant for damages, or to dis-affirm the contract, and to bring his action to recover back the money he had paid. The present case, however, is not one where the plaintiff claims the right of disaffirming the contract, but has consummated it by the acceptance of a deed. The deed cannot be considered as an execu
In the case of Scharmarhorne vs. Vanderhyder, 1 Johnson’s Rep. 140, the court say, ‘ithe consideration for the assignment is expressly stated in the deed of assignment itself, and the parties are thereby precluded from setting up any greater or different consideration. To allow of parol evidence for that purpose, would be to extend or substantially vary the language of a written contract. Though the promise in question may have been made previously to the assignment, yet after the execution of the instrument, we must presume, that the father and son altered the consideration mentioned at first, and finally acted upon that which is set forth in the assignment.” So in the case before us, we must presume, after the execution of the deed, that the consideration therein mentioned was the one finally agreed on between the parties. In the absence of fraud, which we consider this case not corrupted with, it will readily be conceded, on the basis of these and many other authorities in the books, that unless under our statute, the consideration for the land sold by the agent of Dr. Kerr to Mrs. Covington, could not be impeached, by parol evidence, having relation to a period anterior to the delivery of the deed, the statute, as we. have before remarked, will not alter the case, except when there be a deficiency of the quantity mentioned in the deed.
As our statute broaches the contract, so as to let in an inquiry into the consideration, we do not deem it necessary to look into the common law doctrine in regard to defences, to be set up, where there has been fraud, a partial, or entire failure, or want of consideration. Without intending
The cases in 1 and 2 Bay, proceed much upon the civil law principles. Considering all the circumstances in this case, we are of opinion, that a new trial be granted.
Let a venire de novo he awarded, and the costs abide the final result.