Minor v. Edwards & Price

McBride, J., delivered the opinion of the Gourt.. Minor brought an action- o£ debt in the Cole Circuit Court against-Edwards and Price upon the following instrument of writing, to-wit: $1390. Twelve months after date, we, or either of us, promise to pay Henry P. Paulsel, Jacob Paulsel' and Joseph Boggs, the sum of thirteen, hundred and ninety dollars, being the- purchase money for the following [673] lots of ground in the City of Jefferson, county of Cole and State of Missouri, to-wit: out lots number fifty-four, (54) containing twenty acres; number seventy-one, (71) containing eighteen acres and 29-100, and number seventy-two, (72) containing twenty-six acres and 95-100; provided, however, that this bond shall not be payable until said Henry P. Paulsel, Jacob Paulsel and Joseph Boggs shall make, execute and tender to John C. Edwards a good and suificient defed, conveying unto him, said Edwards, a clear title in fee simple, with warranty, to said lots of ground. Witness our hands and seals, this 7th day of September, 1844. John C. Edwards, [Seal] Trios. L. Price. [Seal] The declaration contained four counts. The first sets out the above instrument of writing according to its legal effect, and makes profert thereof. It avers an assignment of the bond by the payees to one William B. Smith, and by Smith to the plaintiff; and that on the 3rd October, 1845, the said Paulsels and Boggs did make, execute and tender to Edwards a good and sufficient deed, conveying to him a clear title in fee simple to said lots of ground, with warranty, &c. The second count is like the first, with an additional averment that the deed tendered to Edwards was by him accepted as a compliance on the part of said payees with the proviso in the bond sued upon. The third count is like the first and second, except that it concludes by averring that the payees did make, execute, tender and deliver to Edwards a good and sufficient deed, &c., which deed he accepted as a compliance on their part with the proviso in the bond sued upon. The fourth count is similar to the first. To the declaration, the defendant pleaded, 1, JVon estfactum; 2, JVil debit; 3, That the payees did not assign the bond to Smith; 4, That Smith did not assign the same to the plaintiff; 5, That the payees did not make, execute and tender to defendant, Edwards, on the 3rd October, 1845, a good and sufficient deed, conveying a clear title in fee simple, with warranty, to the lots of land, as alleged in the declaration; 6, Same plea to the first and fourth counts of the declaration; 7, That the payees had not; on the 3rd October, 1845, a clear, title in fee simple in and to the lots sold by them to the defendant, Edwards; 8, That said payees had not, on the 3rd October, 1845, or at apy time since the making of said supposed deed to Edwards, a clear title in fee simple to the lots for which the bond was given; 9, Same plea as the eighth, but intended' to answer the first and fourth counts of the declaration; 10, The deed of the payees was not accepted by Edwards as a compliance on their [674] part with the proviso in the bond, as alleged in the second count; 11, Similar plea to the third count; 12, That the defendants did not, on the 3rd October, 1845, accept from the payees a deed conveying the lots mentioned, as a compliance on their part with the proviso of the bond, as is alleged in the second and third counts; 13, That said payees had not, on the 3rd October-, 1845, a clear title in fee simple to said lots, as is alleged in the second and third counts; 14, That said payees had not a clear title in fee simple to said lots at the time of the said supposed making of the deed by them to defendant, Edwards, as is alleged by him in the first and fourth counts of their declaration. The plaintiff took issue upon pleas Nos. 1, 3, 4, 6, 10, 11, 12 and 14, and demurred to pleas Nos. 2, 5, 7, 8, 9 and 13; and the Circuit Court sustained his demurrer to the pleas Nos. 2, 5, 7, 8 and 9, but overruled the demurrer to the thirteenth plea, holding that the second and third counts of the declaration were not sufficient in law, &c. On this state of the pleadings, a trial was had, which resulted in a verdict for the defendants; whereupon the plaintiff moved for a new trial, assigning the usual reasons, which being refused by the court, he excepted, and has brought the case here by writ of error, and seeks a reversal of the judgment of the Circuit Court. The principal question of law presented by the record for the decision of this Court, arises on the judgment which the Circuit Court rendered on the plaintiff’s demurrer to the defendants’ thirteenth plea. Even should the plea be bad, yet if the second and third counts in the declaration are also defective, the rule is, that the demurrer will reach back and operate as a demurrer to those counts in the declaration. Are the second and third counts in the declaration sufficient in law to authorize the plaintiff to recover? The defendants insist that the counts set up a parol discharge of the condition of the deed as an excuse for a failure to comply with such condition; and refer to authority to show that an executory contract, under seal, cannot be released or rescinded by a parol agreement. This principle may be conceded, and yet the defendants may not reap any advantage, as it has no application to the case now before us. The payees of the bond sued on have entered into no covenant which they now seek to discharge by a parol release. They have not affixed their seals to the bond whereby they covenanted to make the payors a good and sufficient deed, conveying to one of them a clear title in fee simple, with warranty, of the lots of land therein described, before the said payors shall be bound to pay the purchase money. But the obligors, for their own security, and out of abundant caution, have inserted [675] in their own bond a proviso that the purchase money shall not be paid until the obligees make, execute and tender to one of them such a deed as is above described; and the obligees having accepted the bond, with the above condition, are bound by it. Being made exclusively for the benefit and advantage of the obligors, it is competent for them, by parol or otherwise, to waive its performance, either in whole or in part. The Circuit Court should, then, have sustained the demurrer to the thirteenth plea of the defendants. Lawrence vs. Dole, 11 Vermont, 539; Morril vs. Chadwick, 9 N. H., 84; Monroe vs. Perkins, 9 Pick., 298; Dearborn vs. Cross, 7 Cow., 48. It is contended that the bond sued upon is not assignable, and consequently the plaintiff is not entitled to recover. Our statute, R. C. 1845, 189, sec. 2, enacts, that all bonds and promissory notes, for money or property, shall be assignable, by an endorsement on such bond or promissory note, and the assignee may maintain an action thereon, in his own name against the obligor, in like manner as the obligee might have done. The bond in suit is one for the payment of money, and is assigned by endorsement thereon; we cannot therefore see the reason why the plaintiff may not bring his suit. The proviso in the bond that it shall not be payable until the payees do a certain act, does not alter the character of the bond so far as to prevent its assignment; It only imposes on the payee or assignee the burden of averring and proving the performance of the condition precedent. The declaration contains the averment,'which, if sustained by the evidence, will entitle the plaintiff to a recovery. The doctrine in regard to bills of exchange has no application to bonds and notes not negotiable, which are made assignable by our statute. Another question affecting the pleadings in this case has been presented by the defendants’ counsel. Neither of the counts in the declaration make proferí of the deed, which it is averred was made by the obligees of the bond. The first and fourth counts in the declaration are substantially alike, and each aver that the said Paulsels and Boggs, in discharge of the proviso in the bond, did, on the 3rd October, 1845, make, execute and tender to Edwards, a good and sufficient deed for the lots of ground. Who is to. decide whether the deed was a good and sufficient one in law? Whether it was, and discharged the obligees, was a question of law for the determination of the court; and to have enabled the court to decide, the deed should have been submitted to the inspection of the court. — ■ Coke Litt., 355-6; Sook vs. Knowles, 1 Bibb, 283; Barnett vs. Browning, 8 Mo. R., 693. The same objection does not however apply to the second and third [676] counts in the declaration; for, although the likewise fail to make piofert of the deed therein averred to have been made, yet they aver that the deed made by them to Edwards was by him accepted as a compliance on their part with the proviso in the bond. This, we have heretofore said, it was competent for Edwards to do. We do not deem it important to notice the instruction given to the jury, for, if the case is tried by the principle which we think should govern it, there will most probably be no occasion for the asking or giving ■ any such instruction. Wherefore, for the reasons above set forth, the judgment of the Circuit Court ought to be reversed, and the other Judges concurring, the same is reversed, and the cause remanded for further proceedings in the Circuit Court, in conformity to this opinion.