Lutweller v. Linnell

By the Court, Welles, P. J. The first count is clearly bad on general demurrer. By the contract the defendant had his election to give the plaintiff his own quit-claim deed for the 80 acres of land in Michigan, or procure a deed from the auditor general. The demand was that the defendant would procure for the plaintiff a deed from the auditor general’s office. The refusal of such a demand would not put the defendant in default. The second count might be good on general demurrer. Part of the defendant’s agreement was to pay the plaintiff $70 in cash. This must be taken to be a part of the compensation for the sixteen months’ services, the performance of which was averred, in each count, and, by the plea of non est factum, these averments stood admitted upon the record. The breach in the second count is as follows: “ Yet the said defendant on his part did not nor would give to the said plaintiff, or procure for him, a deed or conveyance of the said eighty acres of land in the county of Allegan in the state of Michigan, at the time and in the manner in and by said agreement agreed and covenanted by and on the part of the said defendant, nor did or would the said defendant pay the said plaintiff for his said work and labor in the way, time and manner required of said defendant in and by the terms of the said agreement, but wholly neglected and refused so to do.” I think here was substantially enough to entitle the plaintiff to recover the money part of the consideration agreed to be paid for the work. There certainly was not enough averred in either count to authorize a recovery for not conveying or procuring a conveyance. In the first count the plaintiff avers a demand which the plaintiff was not bound to comply with, and in the second no demand whatever is averred. Where a party covenants to convey, he is not in default until the party who is to receive the conveyance, being entitled thereto, has demanded it; and having waited a reasonable time to have it drawn and exe [516] cuted, has made a second demand. (Connelly v. Pierce, 7 Wend. 129. Fuller v. Hubbard, 6 Cowen, 1. Hackett v. Huson, 3 Wend. 249.) If on the first demand being made, the party should absolutely refuse, I suppose a second demand would be unnecessary. [Monroe General Term, September 2, 1850 The rule that a plaintiff who proves all that is laid in his declaration ought to be nonsuited, if he fail to make out a cause of action, applies only to cases where the declaration is so defective that a verdict for the plaintiff on any part of it could not be sustained. (Safford v. Stevens, 2 Wend. 158. Boyd v. Townsend, 4 Hill, 183. Gregory v. Mack, 3 Id. 380.) The breach in the second count, being substantially good for the non-payment of the money, the plaintiff ought not to have been nonsuited. The nonsuit should be set aside and a new trial granted, costs to abide the event. Ordered accordingly. Welles, Selden and Johnson, Justices.]