26 Mo. 319 | Mo. | 1858
delivered the opinion of the court.
So much of the answer as alleges that the plaintiff was not the owner of a portion of the land sold is insufficient to set up the defence of a partial failure of consideration. The portion may be so small that the maxim de minimis non curat lex would apply; and every party’s pleadings are to be taken strongest against himself. If the defendants set up the want of consideration, the burden of proof is on them.
As the promise by the defendants to pay the money was an absolute and unconditional one by a separate instrument, it can not be considered as mutual and dependent on the covenant to convey, as that is by a separate and distinct agreement. Under such circumstances the rule with regard to mutual and dependent covenants does not apply. (Simonds, adm’r of Best, v. Beauchamp, 1 Mo. 421; Bircher v. Payne, 7 Mo. 462.) The other judges concurring, the judgment will be affirmed.