Condrey ex rel. Andrews v. West

Opinion by Mr. Justice Catón : The declaration counts on two promissory notes. The third plea of the defendant saj's, that the plaintiff held a Avritten agreement of one George, for a deed of certain premises, which, by a parol agreement with the assent of George, he sold to the defendant; which sale Avas the consideration for which said notes were giAren. That it was a part of said parol agreement, that the name of the plaintiff should be erased from said written instrument, and the name of the defendant inserted as purchaser; which, with the assent of George, was done. The plea then avers that George has no title, and so the consideration of the notes has failed. A demurrer was overruled to this plea, and this presents the only question for our consideration. We cannot hesitate to pronounce this plea obnoxious to the demurrer. As between the plaintiff and defendant, the agreement was completely executed. The defendant acquired all the title which the plaintiff had, or pretended to have, or assumed to sell. In pursuance of the agreement for which the notes were given, the defendant became legally entitled to demand the deed of George. The transaction is the same as if the plaintiff had assigned the agreement for the deed to the defendant. The plaintiff transferred his equitable title, such as it was, to the defendant, precisely as he had agreed. The defendant got all that he bargained for with the plaintiff, who in no way assumed that George should perform his agreement, by the conveyance of a good title. For that, defendant must look to George alone. He should have secured a guaranty from the plaintiff, if he intended to hold him responsible for the performance of the undertaking of George. The judgment of the Circuit ed, with costs, and the cause remanded. it reversed.