Morgan v. Bitzenberger

| Md. | Dec 15, 1845

Spence, J.,

delivered the opinion of this court.

This was an action of assumpsit, brought by defendant in error against plaintiff in error, to recover the purchase money for a tract of land sold and conveyed by appellant, by deed of conveyance, and possession delivered to appellant. The appellant pleaded non assumpsit.

The defendant in error, to maintain the issue on his part, offered evidence to the jury of the sale of the land and premises; the execution of the deed, to the plaintiff in error; and of his possession of the land from the time of sale. The defendant in error also offered evidence to the jury, that at the time of the execution and delivery of the deed by defendant in error to the plaintiff in error, the plaintiff in error paid to the defendant in error the sum of $55, part of the purchase money; and shortly afterwards, the further sum of $100, of the purchase money; and gave his promissory note to defendant in error, for $200, payable ten months after date.

The defendant in error, offered evidence to the jury, also, to prove, that some time before said promissory note became due, the plaintiff in error gave to the defendant in error, an order or draft on a certain William T\ Johnson for $150, and that said plaintiff took up his said promissory note. That the said defendant presented said order to William, F. Johnson for acceptance, who refused to account or pay the same, and who has never accepted or paid the same, or any part tbereof; that the defendant then called upon said plaintiff, and offered to return said order, and demanded back the promissory note which had been given by the defendant to the plaintiff, when he, the said plaintiff, gave the order on W. F. Johnson, to the defendant; that the plaintiff told the defenfendant to hold on to said order; that he would see said Johnson, and he must pay it. The plaintiff in error, then, produced the deed from defendant in error to him, for said land, and offered the same in evidence to the jury:—the said deed being admitted to have been executed in due form of law.

“Whereupon the plaintiff in error prayed the court to instruct the jury, that from the evidence offered to the jury, in this case, under the pleadings, the plaintiff, (defendant in error,) is not entitled to recover the purchase money, or any part thereof, specified and agreed to be paid in the deed from defendant in error to plaintiff in error, under the evidence in the cause:—

First. Because there is no note or memorandum in writing, signed by the said John Morgan, of the contract for the sale of the land and premises, for which this action is brought; and that the case is within the statute of frauds.

Secondly. Because there is no sufficient evidence of the nonpayment of the purchase money of $350, for which this action is brought, to go to the jury to repel and contradict the evidence of the receipt and release in the deed of conveyance, of the payment and receipt of the purchase money, by the defendant to the plaintiff.

Thirdly. Because the remedy of the plaintiff, if he have any, is upon the said order or draft, of $150, which was not accepted or paid, or indebitatus assumpsit for so much money, and not for land sold and conveyed.

Which opinion and direction the court refused to give, and the defendant, (plaintiff in error,) excepted.

That this case was not within the statute of frauds, is, in our judgment, conclusively settled by the case of Wolf vs. Hauver, 1 Gill, 84, where the court says: “The conveyance of the land, and the delivery of possession, in pursuance of the deed, or in other words, the execution of the contract on the part of the plaintiff, raises a duty on the part of the vendee to pay the consideration money, which will sustain the count. Why shortid not such a duty be created, as well by the sale of land, as by the sale of goods? It is said, the subject matter of the contract savours of the realty, and therefore the count is bad. But we have seen no case which sanctions this technical reason, and unless such case be furnished, deciding the question upon satisfactory grounds, we should feel ourselves bound to say, that the law equally implies a promise to pay, in the case before us, as it does in the case of sales of goods, wares, and merchandize ”

The case of Wolf vs. Hauver, 1 Gill, 84, also settles the question conclusively, that the receipt in a deed of bargain and sale, for the consideration money, is only prima facie evidence of that fact; and (hat it was competent for the plaintiff to offer evidence to the jury, to rebut such prima facie evidence, and show, that the purchase money was not in fact paid.

One of the grounds relied on by appellant’s counsel, was the insufficiency of the evidence to repel and rebut the prima facie evidence of the payment of the purchase money for the land, created by the receipt and release in the deed.

It is the province of the court to determine whether evidence is legally calculated to conduct the mind of the jury to a conclusion, but it is the' province of the jury to determine, the sufficiency or insufficiency of the evidence to prove the affirmative or negative of the issue. There certainly was evidence, admissible and competent, as disclosed by the record, given to the jury, and it was their province to determine the question, Whether the purchase money was, or was not paid, as stated in the deed.

We do not find the doctrine sanctioned by authority, that the taking a promissory note for a simple contract debt, per se, extinguishes the simple contract, or original cause of action. 6 H. & J., 166.

The answer to the argument, founded on the non-production of the promissory note on the trial, is found in the fact, that the proof shewed (hat it had theretofore been delivered to the defendant, and the law authorises neither unnecessary or unreasonable demands.

The position taken by appellant’s counsel, in relation to the draft or order on Johnson, is obnoxious to the same objection as the one in relation to the promissory note, it did not extinguish the original contract. It had been tendered to appellant, after acceptance was refused by Johnson, by appellee, and appellant insisted on appellee’s retaining it; and further, it would seem that it was in court at the trial.

judgment affirmed.