1 Blackf. 248 | Ind. | 1823
Debt by Bates against Muchmore on a sealed note for 200 dollars* Pleas, 1st, failure of consideration; 2dly, want of consideration. General demurrer to the pleas, and judgment for the plaintiff below. The defendant appeals.
The first plea states, that the note was given to Bates, in consideration that one Leonard should make the defendant a* good title to a certain tract of land, on or before the 15th of July, 1822; and avers that Leonard, having no title, neither did nor could, on or before that day, or at any time after, make the deed. In this case, the note was payable on the same day on which the deed was to be executed. The acts were to be concurrent; and an execution of the title, or at least an offer to execute it, was first necessary, before a suit could be supported for the consideration money. Jones v. Gardner, 10 Johns. R. 266. The principle is the same, whether the making of the title by Bates himself, or by Leonard, was the consideration of Muchmore’s promise to Bates. If the person who was to make the title had none to make, there was a failure of consideration
To the second plea no objection has been made. It is good.
The judgment is reversed, with costs* Cause remanded, with directions to permit the plaintiff below to withdraw his demurrer, and reply to the pleas.
Vide Leonard v. Bates, ante, p. 172, and notes.
Acc. Luderig v. Croll, 2 Yeates, 464. — Carnes v. Field, Ibid. 541.