JAN. TERM, 1856. DUNCAN V. CLEMENTS. 2799 •DUNCAN ET AL. tract, so as to enable the court to pass V. upon the true construction thereof. CLEMENTS. 2d. It does not show any bar or defense to the action. To an action upon a promissory note, the defend-3d. It is uncertain and insufficient ant pleaded that it was given for the purchase money of a tract of land; and that, by agreement, in other respects. a deed was to be made for the land, on payment of The court sustained the demurrer, the note, averring that the payee had not made or and the defendants saying nothing offered to make such deed: upon demurrer, held, further, the court rendered final judg-that the contract, or agreement, set out in the plea, must be taken to be au obligatory one, and being ment for the plaintiffs, and the defend-within the statute of frauds, and not averred to be ants brought error, and assign here, in parol, must be intended, against the pleader, to only the ruling of the court upon the be in writing, and it ought to have been so alleged demurrer, as error. The single ques-with profert. Such plea, a .9 it impeaches the consideration, in tion raised then, is as to the sufficiency the allegation that the party had failed to make the of the plea. deed, should be sworn to. The contract set up in the plea, Writ of Error to Clark Circuit Court. must, of course, be taken to be an obligatory one, and, as it is not averred ON. THOMAS HUBBARD, Cir- to be in parol, and is within the statute I - cult Judge. of frauds, it will be intended against Flanagin, for the plaintiffs. the pleader to have been in writing. Cummins, for defendant. At common law, a contract, not under seal, but within the statste of SCOTT, J. This was an action of as-frauds, was not required to be declared sumpsit upon a promissory note. The upon, as in writing. Because, although defendants pleaded in an amended in writing, the action was not con-plea, "that the said promii .sory note in sidered as 'based upon a written con-writing, was given in consideration of tract, but upon a mere parol one, of 280/1 the purchase *by the defendant which the writing was but evidence. of a tract of land described, which was And it is not necessary in pleading, to the property of the said Josephine, state that which is merely matter of then Josephine Buckner: and he avers, evidence. Tucker's Pleading 168, 174. that by agreement, a deed was to be Or, as expressed by Mr. Gould: "The made upou the payment of the said writing required by the statute, is not promissory note; and he avers that the regarded as an instrument creating the said Josephine, while single, did not, right asserted in the declaration; but nor has she and the said Robert, since as a mere evidence of a parol con-their marriage, made or offered to tract." Gould's Plead., ch. 43 make deed for said land to this defend-sec. 43, p. 191. "But (proceeds ant, and this he is ready to verify," the same author), if any agree-Zre. • ment within the statute of [•281 The plea was not verified by affi-frauds, be pleaded in bar of an action, davit. the plea, it is held, must show that the The plaintiffs first moved to strike agreement, or some note or memoran-it out, which the court overruled. dum of it, is in writing." Id. sec. 46 'They then demurred to it, and assigned Because, as the plea confesses the cause for cause: of action alleged in the declaration, it 1st. That it does not set forth and can only avoid it by substantial claim, state the terms of the alleged contract which is, itself, shown to be such as of sale, or make profert of such con-will support an action. ld. see. 41.
DUNCAN V. CLEMENTS. VOL. 17 So, at the common law, a profert is 3d. By the enactment P282 required of no other instrument than that, "An action at law may be main-deeds. These being the only private tained on any instrument of writing, writings, which, by the original princi- whether under seal or not, notwith-ples of the common law, are not con- standing it may be lost or destroyed ;. sidered as instruments, on which an ac- and in every such action, no profert of tion or defense can be directly founded. such instrument, shall be required," &c. And, consequently, he who pleads a The consequence is, that under our writing not under seal, is not bound to law, au action or defense, when setting make profert of it. For, written con- up an unsealed written contract, is as tracts, not under seal, are regarded by much directly founded" upon such un-the common law, not as instruments sealed contract as it would be upon a on which actions are founded, but sealed contract, if setting that up. And, merely as simple contracts, or as evi- therefore, with us, a written unsealed dence of parol contracts. id . part 2, contract is to be regarded as an instru-chap. 8, sec. 39, p. 440. ment creating the right asserted in the Our statute, however, has obliterated declaration, or set up in the plea, in the this distinction as to sealed and un- same sense that the sealed contract is,. sealed written contracts, by raising the and was so considered at the common latter to the dignity of the former, and law. Hence, our practice, long ago es-. placing them both upon a basis of per- tablished, of requiring profert of un-fect equality, for all the purposes of sealed written contracts, when counted maintaining an action, or making a upon, or when set up in a plea, pre— defense upon them, by the several pro- cisely as profert would be required of a visions: sealed contract. lst. Enacting . that, "When any dec- Nor is profert, in such cases, an idle. laration, petition, statement or other ceremony ; because, what such a con-pleading, shall be founded upon any tract means, is a question of law. It is instrument or note in writing, whether the court, therefore, that determines the same be under seal or not, charged its construction, and gives it to the to have been executed by the other jury as a matter of law. 2 Parsons on party, and not alleged therein to be Con t. 4. lost or destroyed, such instrument shall "The construction of all written be received in evidence, unless the instruments belongs to the court alone, party charged with having executed whose duty it is to construe all such the same, deny the execution of such instruments, as soon as the true mean-writing by plea, supported by the af- ing of the words, in which they are fidavit of the party pleading ; which couched, and the surrounding circum-affidavit shall be filed with the plea." stances, if any, have been ascertained Digest, chap. 126, p. 812, sec. 103.1 as facts by the jury ; and it is the duty 2d. _Enacting that, "In all suits, of the jury to take the construction founded upon any instrument or note front the court, either absolutely, if in writing, under the seal of the per- there be no words to be construed as son charged therewith, the defendant words of art, as phrases used in com-may, by special plea, impeach, or go merce, and no surrounding circum-into the consideration of such writing stances to be ascertained ; or, condi-in the same manner as if such writing tionally, when those words or circum-had uot been sealed." Id. see. 75. stances are necessarily referred to 1. On exhibits to pleadings see Sorrells v. Mc- them Unless this were so, there would Henry, 35-125 and cases cited. be no certainty in the law ; for a mis-
JAN. TERM, 1856. construction by the court is the proper Branch v. Bolton, decided at the same subject, by means of a bill of excep-time. tions, of redress in a court of error, but C i ted: —23-202; 3s-r3. a misconstruction by the jury cannot be set right at all, effectually. Per Parke B., in Nelson v. H«rtford, S & W. 806, 823. Such a contract, then, ought to be alleged as in writing, with 2831 *profert, that the court may have a view of it, pass upon its effect, and determine whether it furnishes the defene claimed for it. The case of Smith v. _Henry, 7 Ark. 207, does not conflict with these views, because, in that case, the plea expressly set up a petrol contract, under which, by intendment, the defendant was in the possession of the lots purchased, and the court, proceeding to construe that parol contract, held, that as "the promise to execute the deed was not in writing, that most clearly sh ,wed that it was the intention of the partie,i that the deed should be executed at the same time that the money should be paid." Id. p. 213. We think the court erred in refusing to grant the motion to strike out the plea, because, according to the matter therein set up, the consideration of the note sued on, was two-fold. That is to eay, one, the sale and purchase of the land, which was executed; and the other, the agreement to make title to it, upon the payment of the note, which was executory; and the plea alleged a failure as to the latter. Hence, quoad the latter, the plea impeached the consideration of the note. Such a plea, under the provisions of our statute, must be verified by affidavit. Digest, chap. 126, sec. 76, p. 808. Of this error, however, the plaintiffs in error cannot avail thernselves, because, not to their injury. But there was no error in sustaining the demurrer. The judgment must, therefore, be affirmed. To the same effect was the case of
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.