Ewing v. Wightman

VAN BRUNT, P. J. The plaintiff in this case, suing as receiver of the Cardiff Coal & Iron Company, sought to recover upon 61 causes-of action, each being upon a promissory note based upon a contract made by the said company for the sale of land at Cardiff, Tenn.; all of the contracts being of the same tenor and form, except as to-the purchase price, amounts of payments, and description of land. The defendant was the maker of each of the promissory notes sued on, and also the vendee in the contract of sale of lands in connection with which the notes were given. Certain cash payments were made on these contracts, and the notes were made and- delivered as evidence of deferred pajnnents to be made on the contract of sale; and it was agreed that the vendor, the Cardiff Coal & Iron Company, upon full payment of the purchase price, should convey in fee simple, with covenants of general warranty, the particular lot described in each contract. Suit was not brought upon any of these notes until after the maturity of all of them. It was proven that the notes and the contracts were executed simultaneously," and that the consideration for the former was the„ agreement to convey the land specified in the contracts on the payment in full of the purchase money represented in part by the notes. The contracts were executory. They do not constitute conveyances of the land. The notes were consideration protanto for the conveyance of the land, or, in other ivords, for the purchase price of the land, and as between the Cardiff Coal & Iron Company, or its receiver, the plaintiff, and the defendant, are open to all defenses available in an action by a payee against the maker of a promissory note. It appears that the lands mentioned in these contracts have been sold by the receiver, and hence he is incapable of [269] giving title thereto, in case the notes given in pursuance of said contract are paid, and the consideration for the notes has therefore failed. The plaintiff by his sale has elected to terminate the contract, and his action is inconsistent with the enforcement of any rights under it. If a party insists upon his rights under a contract, he must do nothing which destroys his power to comply with Ids obligations contained therein. The defendant is not hound to pay his notes and get nothing in return. The judgment should be reversed, and new trial ordered, and costs to appellant to abide event. All concur.