Elder v. Hood

Mr. Chief Justice Walker delivered the opinion of the Court: It is objected that the count should have been special on this contract, and that a recovery could not be had under the common count. As regards unexecuted contracts, such is the undoubted rule; but the practice is well settled, that when an agreement has been performed in all of its parts, except the payment of the money, by one of the parties, the other may sue and recover under the appropriate common counts. This rule is familiar, and it is believed to be of general, if not uniform application. When, therefore, defendant in error executed the conveyance for the land, he had fully performed his part of the agreement, and nothing remained to be done, but for plaintiff in error to pay the purchase money, and failing to do so, the action of assumpsit could be maintained, and a recovery had under the count, for real estate sold. and conveyed. It is likewise insisted, that the proof fails to sustain the declaration. Plaintiff below introduced the deed executed by himself to defendant in error, in evidence, by which it appears that the land was conveyed; and he also proved by the scrivener who drew the deed and the articles of agreement, that no money was paid on the purchase, at the time the conveyance was executed and delivered. It likewise appears by the agreement of the parties, that defendant in error was to retain from the proceeds of the sale of the patent right, of the first money received a sufficient sum out of the half belonging to plaintiff in error, to pay the purchase money for the land, with ten per cent, interest. This evidence clearly shows that the purchase money was not paid when the deed was delivered ; nor is there any evidence in the record that it has been subsequently paid. It is however urged, that the receipt of the money is acknowledged, in the deed. This is true, but the rule is well recognized, both by the courts of Great Britain, and in this country, such an acknowledgment, in a deed of conveyance, is but a receipt for money, and like any other receipt, is subject to be contradicted, explained or varied in its terms, by extrinsic evidence. Whilst the deed must speak for itself, in all other respects, the acknowledgement of the payment of the money, is only treated as a receipt, and is governed by the rules of evidence applicable to such instruments. It may be, that the parties to this transaction may have become partners in the sale and profits growing out of the patent right, yet it does not follow, that they also became partners in this land. If the land was conveyed by defendant in error, as the consideration for the transfer of an interest in the patent right to him, by plaintiff in error, he has failed to show the fact, and their agreement only shows that the land was purchased, and that it might be paid for out of the proceeds of sales of the patent right. The agreement does not show that this was the only mode of payment contemplated by the parties. The fact that one partner sells his individual property to another partner, has never been held to render it firm property, or its proceeds joint funds, nor to prevent vendor from suing and recovering the purchase money. We are, therefore, of the opinion, that the action may be maintained. It was further insisted, that the instruction given for defendant in error was improper. We are unable to see any objection to this instruction. It asserts that if defendant in error sold the land to plaintiff in error for a specified price, and no time was fixed for payment, then the same is presumed in law to be due; and unless the same or a part thereof is shown to have been paid, they should find the whole amount proved to be due, with interest, for the plaintiff. And the fact that plaintiff had the right to apply moneys received from the patent right upon the same, would not preclude a recovery. We know of no rule of law which renders a sale of real estate an exception to the general implication which the law raises, that when property is sold, and no time is specified for payment, that the money is due, when a delivery of the property sold is made to the purchaser. And this rule applies to every species of property when sold, and no reason is perceived why an exception should obtain in relation to real estate. And we have seen, that the right given by the written agreement of the parties to defendant in error, to apply moneys received by him for plaintiff in error, in payment for the land, did not preclude defendant in error from insisting upon payment before the money should be received from that source. We are, after an attentive examination of the record in this case, unable to perceive any error for which the judgement of the court below should be reversed, and it must be affirmed. Judgment affirmed.