41 Barb. 420 | N.Y. Sup. Ct. | 1863
The learned justice before whom this cause was last tried, and whose rulings we are now called upon to review, felt constrained to adopt the same ruling substantially, which was made on the first trial of the cause in April, 1859, in order to prevent a complete failure of justice between the parties. That ruling was held to be erroneous, and a new trial was granted for that reason, by this court, at the March term, 1860. (See 31 Barb. 395.) The history of this case, since the first trial, seems to me to furnish a most forcible and convincing illustration-of the soundness of the ruling at the circuit, and of the fallacy of the decision of the general term in
But this action is not upon the contract, nor between the parties to it. The action is upon a separate and independent promise by the purchaser and other parties, to pay the plaintiffs the sum specified at a particular day. The consideration of this promise, it is true, is the agreement of the plaintiffs with McMillen. But before the defendants can defeat the action entirely, they must show either fraud in the transaction in which the note has its inception, or an entire want, or failure, of consideration. A partial want, or failure, of consideration cannot be alleged in bar; and no fraud is shown.
It is quite manifest that here is no entire failure of consideration. The plaintiffs have not refused to- convey, but offer to convey the entire premises, and insist upon their right to the whole, and this right to the largest portion by far is con
The contract being, as we have seen, still open and unrescinded, and the defendant McMillen being in the full enjoyment of the benefit of the consideration of the note, is in no situation to resist payment. Paréons, in his book on Bills and Notes, at page 203, notices a distinction between the failure of the consideration of a note, and the failure of a benefit resulting from it. As where one party promises another to do a certain thing, and the other gives his note to the promissor, in consideration of such promise, the latter cannot defend against the note, on the ground of a failure of the consideration, so long as he retains the promise made to him, or if it be of such a nature that the other party is permanently held upon it. Before he can defeat the note he must cancel the promise. And in Wright v. Delafield, (23 Barb. 498,) it was held that a purchaser of land could not keep the land and refuse to pay for it, whether the title was good or bad. That if it was bad he must elect to take it as it was, or as the vendor could make it, and pay for it, or else give it up. And that, as the purchaser did not elect to give up the land, he must pay for it according to his agreement.
This is only stating in another form a very familiar and elementary rule of law, that where one obtains a right to the possession of land, and to the use and profits thereof, by
The learned justice who delivered the opinion in this case on a former occasion upon granting a new trial, as reported 31 Barbour, 395, admits that had the defendants paid the note in question, voluntarily, it could not, upon the evidence in the case, have been recovered back. This conclusion is of itself fatal, not only to the defense but to the authority of the point then decided. For it is most manifest, in a case like this, that the principle upon which payment may be lawfully refused, and that upon which the money if paid voluntarily might be recovered back, are identical, to wit, fraud or the failure of the consideration. The difficulty in the way of the defendants, in either case, is enhanced by the fact thg,t they are not all parties to the contract.-
This case is not affected in any respect by the decision in Fletcher v. Button, (4 Comst. 396.) That was an action to recover back the purchase money paid, where it was conceded that the vendor was wholly without title to any portion of the premises. Mo question was raised by the pleadings as to the purchaser having obtained any rights under the contract, or as to its having been rescinded or otherwise. On the contrary, it was conceded by the answer that the plaintiff was entitled to recover back the money paid, and the only claim made by the defendant was a right of set off for use and occupation, against the amount of payments made. That case is wholly unlike this, not only in its facts but in respect to the questions raised by the pleadings and litigated upon the trial. Mor is this case to be confounded with that class of cases where a note is given in consideration of a conveyance made, and the title has failed; nor with those cases where'"the action is directly upon the contract which the
The action here is upon a separate promise, executed in part by persons who are not parties to the contract, and which contract is still open, neither party having put an end to it, on account of the default of the other, but each retaining every thing acquired under it. How can the court say that the plaintiffs shall not have the benefit of the contract, on their side, .to recover according to its terms the value of the property which the defendant McMillen obtained from them by means of it, and which he still keeps and enjoys, and holds from them only. It was in consideration of his promise that he obtained the possession of these premises, and has so long enjoyed their use, and as long as he elects to keep the consideration and the benefits resulting from it, the law must hold him to his promise, and allow the other party to enforce it. Before the court can have any right to absolve him from his promise he must do works meet for such absolution, which he has not yet done. It would be monstrous injustice, as it seems to me, in the court to drive the plaintiffs to rescind the contract and seek some other remedy outside of it, in order to wrest the property from the tenacious grasp of the purchaser. They do not wish to rescind, and indeed under the authority of our former decision might find great difficulty in doing so should they attempt it. They prefer to enforce this joint and several promise of the defendants, and to respond to McMillen alone, if he shall prefer any claim for any breach of the contract, between themselves and him. This I think they should be allowed to do. I am of opinion, therefore, that our former decision in this case was clearly erroneous and should be reversed, and that the ruling at the circuit should be sustained and a new trial denied.
Welles, J. concurred. E. Darwin Smith, J. dissented.
Hew trial denied.
Welles, E. Darwin Smith and Johnson, Justices.]