4 Rawle 26 | Pa. | 1833
(after stating the case) delivered the opinion of the court, as follows:—
We agree fully with the court, that this case must be taken divested of all considerations arising from the allegation of fraud. The inability to pay the notes, as they became due, was not evidence of fraud, nor, on the other hand, was fraud fairly inferable from proof of the fact, that at the time the mortgage was executed the property was previously encumbered to an amount which reduced the value of the security below five thousand dollars. The parties must be supposed to have entered into the contract with a knowledge of all the circumstances, and if they intended to insist on fraud, some evidencé should have been given other than the written testimony which was submitted to the jury. If the defendant intended to insist on fraud in fact) it should have been charged in his notice of special matter, otherwise the plaintiff might be taken by surprise. It is not sufficient to allege facts, from which an inference of moral fraud may be drawn, as has been heretofore decided by the court. The object of special notice is to put the plaintiff on his guard, that his attention may be drawn to the defence, on which the defendant relies. There is nothing in this notice by which the plaintiff cbuld be
The only difficulty arises in the charge of the court, on the three first propositions of the defendant’s counsel, all of which may be properly considered under one head.
I cannot say that I exactly comprehend the meaning of the court, when they declare, that they consider the payment of the notes but part of the consideration. This is not explained in the charge, and we have to regret that we have not a more full report on this head, as this appears to be made the hinge upon which the whole cause turns. If this had been the case,-when part of the considerations failed and part did not fail, the mortgage would not be void. When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and action may be maintained for a breach 'of the covenant on the part of the defendant, without averring performance in the declaration. 1 Saund. 320, note 4.
The bond, and mortgage, and agreement, being executed at the same time, and in reference to the same- subject-matter, must be taken as one covenant. 2 Vern. 459, and 17 Sergeant & Rawle, 115. To discover the intention of-the parties concerned, is the chief object, and in effecting this we have not to encounter any technical difficulties. For covenants, &c. are to be construed to be either dependent or independent, of each other, according to the intention and meaning of the parties and the good sense of the case; and technical words should give way to such intention. 1 Saund. 320, noted. On the 31st August, 1822, the time the agreement was made, MCrelish was indebted to Pray, five thousand one hundred and seventy dollars, for which he had given him his notes, of different dates, different amounts, and payable at different times. It was a business transaction ,• the ordinary case of debtor and creditor. MCrelish was under no obligation, legal or moral, to give additional security for payment of the money due. We are then to seek for the motive which induced MCrelish to give Pray, or if you please, the holders of the notes, such security for the money,- and this reason, which forms the consideration of the contract, is given in the agreement itself. M'-Crelish agrees to give to Pray the mortgage and bond in question, and the sum of one hundred and seventy dollars and forty cents, in consideration whereof Pray stipulates that he will pay off and take up all the notes, as they become due, and deliver the same to MCrelish. It is not denied that M‘ Crelish performed all his part of the contract to the letter; that is, he gave his bond and mortgage, and paid the money, according to contract. The plaintiff sues out a scire facias on the mortgage, which is in substance calling on the defendant to shew cause why the property should not be sold for payment of the notes, which it was intended to secure, and the
Judgment reversed, and a venire- facias de novo awarded.