Malaby v. Kuns

Smith, J. This was an action of debt brought by the plaintiffs in error upon two promissory notes for 500 dollars each, one payable on the first day of January, 1848, and one on the first day of January, 1849. The defendant pleaded, inter alia, that these notes, with two others, due in 1846 and 1847, and which had been paid, were given in consideration of an agreement by the plaintiffs to execute to him a deed for a certain tract of land on the payment of said four notes; and that the plaintiffs did not, on the first day of January, 1849, which was the day on which the last note became due, or at any time previous to said day (1), make, or offer to make, such [389] deed, on condition of the defendant’s paying the balance of the purchase-money, or otherwise howsoever. G. 8. Orth and E. H. Brackett, for the plaintiffs. D. D. Pratt and 11. Allen, for the defendant. The plaintiffs demurred to this plea, but the demurrer was overruled, and the defendant had judgment. The plaintiffs contend that they were not bound to tender a deed on the day the last note became payable, but that, as it was to be made on the payment of all the notes, if such payment was not made on that day, they could at a subsequent day, within a reasonable time, tender a deed and sue on the notes. The plea must, however, be held good under the former decisions of this Court. The same point was made in the case of McCulloch et al. v. Dawson, Ind. R. 245, (2) in which the principles involved are discussed at length. Per Curiam. The judgment is affirmed with costs. Footnotes [(1)] The record shows that said last note was payable on or before the 1st day of January, 1849. [(2)] See 1 Carter’s Ind. R. 413.