JAN. TERM, 1856. KEY V. HENSON. SCOTT, J. This was an action of debt, on a promissory note, dated the 16th December, 1852, and payable to James Hudson, on the 25th day of December, 1853. The plaintiff sued as administrator of *Hudson. The defendant in- P255 terposed a special plea, of which the following is a copy, to-wit: "Comes the said defendant by attorney, and says actio non, &c., because he says that the consideration of the note sued on herein has entirely failed, in this, to-wit: On the llth day of March, A. D. 1851, John Hutchinson and James Hudson sold to Benjamin 254'1KEY ET AL. W. Winstead and James Tate, the y. south-west qr. of the west qr. of section 3, township 9 south, range 17 west, HENSON AS AD. in Dallas county, on which a saw-mill A defendant may recoup the damages sustained is erected, for the : this defendant by failure of consideration, as well where the action is brought upon an instrument given to secure further avers that the said Benjamin the payment of the purchase money, on a contract W. and James Tate, in order to secure of bargain and sale, as where it is brought upon the the payment of the purchase money original contract. due for said tract, and for certain other A court of law can properly afford no retie'', upon the principle of recoupment, where the failure of purposes, executed a certain deed of consideration is not of the quantity or quality of trust to one A. H. Phillips, in and upon land purchased and sold, but of the title, unless said tract of land, for the benefit of the amounting to an entire failure of the whole con-said John Hutchinson and James Hud-sideration- the party's remedy is in equity • (Wheat v. Dolson,12 Ark., Rep. 699; McDaniel v. son, and the defendant avers, that after-Grace, 15 Ark. 487.) wards, to-wit: on the 16th Decem-In an action upon a promissory note, the de-ber, A. D 1852, the said defer dant, by fendants pleaded that the consideration of the note and with the consent of the said James was the purchase money of a tract of land bought of W. & T., by consent of plaintiff's intestate, who Hudson, purchased of the said Win.- held an incumbrance on the land: that by consent stead and Tate, said tract of land, for of all the parties, the note sued on (being for part the sum of $1100, and executed their of tee consideration) was given to plaintiff 's in-said notes in payment therefor, one of testate, he promising to release his incutnbrance, which he, and his administrator since his death, which was the note herein sued, and had refused to do: Held, That the plea is not good which was, by consent of the parties, by way of recoupment ; nor in bar of the action— taken in the name of James Hudson, the contracts to release the incumbrance and to pay the said James Hudson then and there the purchase money being independent covenants, and the former not a condition precedent. agreeing with the said defendants, that if they should give their said notes Appeal from Dallas Circuit C ourt. for said tract of laud, he would im-ON THEODORIC F. SORRELLS, mediately assign to said defendants, all H Circuit Judge. his interest, right and title to the prop-Watkins & Gallagher, erty so conveyed in said deed of trust : for the appel-and these defendants aver that they lants. have paid all of the consideration mo-Compton& Smith, contra. ney (or note given for the said consider-
KEy v. HENSON. VoL. 17 ation money), for said certain tract of We shall first endeaver to ascertain, land, with the exception of the note from a scrutiny of the plea what was the herein sued on, and two other smaller consideration of the note, upon which notes, one for $100, and the other for the aetion is based. The pleader, after $48 ; and this defendant avers that the presuming that Hutchinson and Hud-said James Hudson, previous to his son had sold to Winstead and Tate, a death, would not, and did not execute certain quarter section of land, on to these defendants, or to either, any which a saw-mill was erected, and that release or assignment of said James the latter, to secure the purchase mo-Hudson's interest in the property con-ney therefor, and for other purposes, veyed in said deed of trust, but so to do, had executed a deed in trust for said wholly neglected and refused, although tract of land, to one Phillips, for the these defendants aver that the same benefit of the former, proceeds to aver was a part of the consideration of all that, afterwards, to-wit : on th 16th of the said notes, amounting to said sum December, A. D. 1852, the said defend-2569 of eleven huedred dollars, and ants, by and with the consent of the that the plaintiff in this suit, as admin-said James Hudson, purchased of the istrator of said James, has since his said Winstead and Tate, said tract of death, refused to assign the interest land for the sum of $1100, and executed of the said James Hudson, in said their said notes in payment therefor, property so conveyed in said deed of one of which was the note herein sued, trust, and still refuses so to do: and and which was, by consent of all the these defendants aver that, on account parties, taken in the name of James of such refusal of the said James, dur-1Hudson ; the said James Hud- r257 ing in his lifetime, and of the said G. son then and there agreeing with said W. Hensoaa. as administrator, to make defendants, that if they should give such assignment, and the still existing their said notes for said tract of land, he incumbrance on the same in favor of would immediately assign to said de-said administrator, diminishes the fendants, all his right, interest and value of the title to said tract of land of title to the property so conveyed in the said defendants, and in part pay-said deed of trust. ment whereof, the note herein sued on In the first place, it is to be remarked, was given as aforesaid, to at least the that, in the averment that "the said full amount of said note, and said other defendants, by and with the two notes, wherefore this defendant consent of the said James Hud-avers that he is entitled to recoup the son, purchased the said Win-amount of said notes, and that the con-stead and Tate, said tract of land, sideration thereof has entirely failed, for the sum of $1,100, and executed and this he is ready to verify, where-their said notes in payment therefor, fore he prays judgment, &c. one of which was the note herein sued, This plea was regularly verified by and which was, by consent of all the the affidavit of one of the defendants, parties, taken in the name of James filed with the plea. The court sus-Hudson," there is a distinct statement, tained the demurrer, and the defend-that the note sued on was one of those ant declining to plead further, the court that were executed in part payment of rendered final judgment for the plaint-the $1,100 for which the defendants iff; and the defendant appealed to this purchased the land in question, from court. Winstead and Tate. In the next place, The only question is, as to the suffi-it is to be remarked, that upon the cieP„v of the plea. grammatical construction, there is a
JAN. TERM, 1856. KEY Y. HENSON. ground of inference that all of the notes that the consideration of the note in executed. by the defendants in payment suit was two-fold: one which moved of the $1,100, were not executed in the from Winstead and Tate, which was name of James Hudson, but only the executed ; and the other, which moved one suit, or some number of them less from Hudson, which was executory. than the whole. 2 Parsons on Cont. 25. That which moved from Winstead and In the next place, the averment that, Tate, was the sale, conveyance of title "the said James Hudson, then and to, and possession of the quarter sec-there agreeing with the said defend-tion of land described ; the pleader ex-ants, that, if they should give their pressly averring that the failure on the said tract of land, he would immedi-part of Hudson and his representatjve, ately assign to said defendants all his "diminishes the title to said tract of right, interest and title to the property land of said defendants ;" and it must so conveyed in said deed of trust," be intended that they are in possession there is a distinct allegation, that the of it, as there is no averment of their promise of Hudson equally related to evictions from it. That which moved all the notes that were to be given, and from Hudson was his promise that he not to the one in suit exclusively ; and would, immediately, upon the execu-that his promise related to notes that tion of the notes by the defendants, for should be given by the defendant for the purchase money 'of the land bought the tract of land so purchased by them by them from Winstead and Tate, of Winstead and Tate. assign to them all his interest, right The pleader then proceeds to aver and title to the property conveyed in that the defendants had paid all the the deed of trust. consideration money or notes therefor, And, if the plea is to be taken as its "with the exception of the note herein •own exponent, it would seem to be sued on," &c. ; and that Hudson, pre-equally clear, that it affords no ground vious to his death, did not execute of any plausible inference, that the any "release or assignment of his sole consideration of the note in suit 258*]9nterest" in the trust property, was the promise of Hudson. And such but refused to do so, "although these an inference would be repugnant to defendants aver that the same was a the whole drift of the plea as it now part of the consideration of all the said stands. Hence, if, in addition to what notes, amounting to said sum of eleven it now contains, there was an express hundred dallars," and that, since his averment to that effect, the plea would death, his administrator had not done fall for repugnancy in matter so, but refused and still refuses, and *of substance in thus neutral- [---"259 finally avers that, on account of said izing allegations touehing the vital refusals to "make such assignment and question in the case made by the plea. the still existing incurnbrance on the Gould's Plead., chap. 3, sees. 172, 173. same, in favor of the administrator, di-With this understanding as to the minishes the title to said tract of land consideration of the note sued on, we of the said defendants, and in part pay-shall, in the first place, consider the ment whereof, the note herein sued on plea as one setting up matter for re-was given as aforesaid, to at least the coupment. And such it was evidently full amount of said note," &c. designed to be by the pleader. When all these averments are con-In the first place, then, it may be re-sidered together, it would seem impos-marked, that it is no objection to the sible to avoid the conclusion, if the defense, in this respect, that the suit is plea is to be taken as its own exponent, not upon the original contract of sale,
BEY V. HENSON. Vol.. 17 'but upon a note given for the purchase parties sta,,ulated but for himself, Hud-money thereof. The promise of the son was a party as well as ;Winstead defendants to pay the purchase money and Tate, and, as an inducement for has but undergone the modification of the vendees to make the purchase and being put into the form of a written execute their notes for the purchase promise, the basis of which latter was money, he stipulated, on his part, that, wide enough to include the contempo- if they should do so, lie would release raneous mutual stipulation in the same to them his incurnbrance upon the contract of sale, on the part of Hud- land. And, although this he did with son, that he would release and assign the consent of Winstead and Tate, to the promissors, his incumbrance they became no further responsible for upon the subject of the purchase, in his stipulation, than, in so far as they part consideration -of which purchase have necessarily become so by having the written promise was made. Hence, been made, by the terms of the sale of the attempt to enforce this written contract and purchase, the substantial promise, is, in effect, but an effort to promises of the purchase money for enforce the original contract of sale the whole sale -the consideration for and purchase, and the questions aris- which, so far as the promissors are ing are to be settled in the same man- concerned, was, as well the land sold ner as if this action was in form upon to them by Winstead and Tate, as the that contract. stipulation on the part of Hudson, The breach complained of, for which that he would release his incumbrance recoupment was sought by the defend- upon it. And they were such substan-ants, was of the stipulation, on the tial promises for the whole considera-part of Hudson, that he would release tion money, although, in point of fact, and assign his incumbrance to them. one of the notes for a part of the It is undoubtedly true, that there same was, by consent of all parties, can be no recoupment, by setting up made payable to James Hudson. And the breach of an independent contract, in this character, and to the extent of on the part of the complainant, or any the value of Hudson's incumbrance, other person. But this is not the case they were liable to the vencees, here. Here, there were contempora- through the legal right of these neous mutual stipulations between vendees to set up the failure of Hud-these parties, all relating to the same son to comply with his stipulation, as subject matter and all uniting in one a partial failure -of consideration of contract of sale and purchase. And their own promises to pay the 'pur-there can be no difference, in principle, chase money. Thus, the stipulations whether the whole transactions were on the part of Hudson, so far as the included in one written instrument contract between Winstead and Tate setting forth the cross-stipulations of and their vendees is concerned, were each party for himself, or whether it not an independent contract, but one 2609 takes the *form of a separate of the stipulations of the contract of and distinct undertaking of each party, sale and purchase, by which one party or that the undertaking of one or more sold, and the other bought the land in parties has been reduced to writing, question. while the engagement of the other re- So long as this incumbrance remain-mains in parol. In either case, the ed unremoved, it continued a blemish substance of the matter remains the upon the defendant's title to the land, same. derived by them from Winstead and Here, although each of these three Tate, and under the facts set up in the
JAN. TERM, 1856. KEY V. HENSON. plea, constituted a failure of so much failure of consideration of the contract .of the consideration of the note sued upon, relates to the title of real 2611*'in suit, as was based upon Hud-estate, and does not amount to the to-son's stipulation to release and assign tal failure of the entire consideration to the defendant his inbumbrance. But of the contract. the nature of this failure was not that In such cases, courts of equity, by of a failure of the quantity, or of the means of their exclusive and peculiar quality of the lands purchased and jurisdiction over the title to real estate, 'sold, but of the title to it. to compel its transfer to the party to When this is the case, whatever may whom, upon principles of equity, it be the extent of the value of the fail-'may rightfully belong, after the r262 ure, unless amounting to an entire fail-adjustment and removal of incum-ure of the w.hole consideration, it has brances upon it, are alone competent, been settled in this court, that a court by their constitution, to administer •of law can properly offer no relief at complete justice between the parties, all. Wheat v. Dotson, 12 Ark. 699, and terminate all further litigation. note 1. And that where a party has The case at bar is no indifferent illus-gone into possession under his pur-tration of the wisdom of this rule chase, it can never amount to that since, if recoupment were allowed, un-without eviction therefrom or its legal der the circumstances of this case, it equivalent. McDaniel v. Grace, 15 is certain that thereby, neither the title Ark. Pep 487. of the defendants would be perfected, This limit to the scope for recoup-nor litigation in the premises ended ment, iu courts of law, is placed upon while it is by no means certain, but it, by the principles upon which they that injustice would be done. Whereas, proceed, when undertaking to adminis-if these parties were called before a ter this equitable remedy. That is to court of equity, that -court could get a say, the prevention of circuity and view of the incumbrance upon the title, multiplicity of action in all those cases, ascertain its character and extent, ad-where a fair opportunity can be af-just it upon principles of equity, and forded by a single action to do final compel the parties to do justice to each and complete justice between the par-other, as well in this adjustment, as iu ties litigant, as to all matters arising the transfer of title, if necessary. out of, and connected with the contract., But, although the plea cannot be al-on which the suit was brought, by lowed as one setting up matter of re-nutking cross demands arising thereout coupment, it may not not be unworthy —whether liquidated or not—compen-of inquiry, whether or not the matters sate each other, the balance only, if set up in the plea may be insisted upon any, to be recoverable by the plaintiff: as a bar to the action in interposing the. When, however,this fair opportunity promise of Hudson to release and as-for complete adjustment of cross design his incumbrance as a condition mands, cannot be afforded by courts precedent to the recovery of the note of law, by reason of any inherent in-in suit. capacity in these courts to administer It would seem not, under the opera-complete justice in the premises, they tion of a principle of law relating to have no authority to proceed at all, the construction of covenants, as to upon the very ground upon which whether they shall be held to be de-they do proceed in the cases where pendent or independent, which is this can be done. Hence, the denial usually stated thus: "Where a cove-of the jurisdiction in cases where the nant goes only to a part of the consid-10 Rep.
KEY V. HENSON. VOL. 17 " eration on both sides, and a breach of to him of the equity of redemption of such covenant may be paid for . in the plantation, and also the stock of' damages, it is an independent cove- negroes thereon. The excuse of non-nant, and an action may be main- payment of the money was, that A. tained for a breach of the covenant on had broke his covenant as to part of the part of. the defendant, without the consideration, namely: the stock of averring performance in the declara- negroes. But, as it appeared that A.. tion." 2 Parsons on Cont.,p. 41, note L : had conveyed the equity of redemption where this and other rules are stated, to B., and so, had, in part executed his and many of the cases under them are covenant, it would be unreasonable collected. that B. should keep the plantation, and The leading case on this rule, is yet refuse payment, because A. had not Boon v. Byre, 1 H. Blackstone 273, note good title to the negroes." Per Ash-a. The plaintiff; in that case, conveyed urst, J.. 6 T. R. 573: "Besides, the dam-to the defendant the equity- of re- ages sustained by the parties would be demption of a plantation in the West unequal if A.'s covenant were held to Indies, together with the stock be a condition precedent. Duke of St. of negroes upon it, in considera- Albans v. Shore, 1 11. Black. 279. For 2631 *tion of X500, and an annuity of A., on the one side, would lose the con-£160 per annum, for life: and cove- sideration money of the sale, but B.'s nanted that he had good title to the damage, on the other side, might con-plantation, was lawfully possessed of sist, perhaps, in the loss of a few ne-the negroes, and that the defendant groes." should quietly enjoy. The defendant Premising, that as to the case covenanted, that the plaintiff well and presented in the plea, there can truly performing all and everything on °be no difference, in the appli- V264 his part to be performed, he, the de- cation of the principle of law cited, fendant, would pay the annuity. Plea, that there were two part ies standing in that the plaintiff was not, at the time the attitude of vendors, instead of one; of making the deed, legally possessed the one selling the land, and the other, of the negroes, and so had not a good as part of the same contract of sale, title to convey. Demurrer general to stipulating to release an incumbrance; the plea. Lord Mansfield: "The dis- instead of one selling the land, and also, tinction is very clear, where mutual himself, in the same contract of sale, cOvenants go to the whole of the con- stipulating to remove an iucumbrance sideration on both sides, they are mu- upon it: tual conditions, the one precedent to The mutual covenants or promises of the other. But where they go only to the paxties iu the contract set up in the a part, where a breach may be paid for plea, may be thus stated : that is to say in damages, there the defendant has a —on the one side, that Winstead and remedy on his covenant, and shall not Tate would sell and convey the land, plead it as a condition precedent. If and Hudson would release his incum-this plea be allowed, any one negro not brance upon it. On the other side, that being the property of the plaintiff Winstead and Tate and Hudson, well would bar the action." and truly performing all and every-Upon this ease, Sergeant Williams thing on their part to be performed, remarks as follows: 'rhe whole con- the defendants would pay the purchase sideration of the covenant on the part money. This action is brought for the of T3.. the purchaser, to pay the money, non-payment of part of the purchaft was the conveyance by A., the seller, money. The plea k, Oat Hudaoa has
JAN. TERM, 1856. KEY V. HENSON. not released his incumbrance. Demur- pressed thus : "Where the clause in rer. question goes to the whole considera-Applying the remarks of Sergeant tion, it shall be read as a condition." Williams, and the judgment of Lord "The meaning of this" (says Judge Par-Mansfield, the result would be as fol- sons, in his work on Contracts, 2d vol., lows: The whole consideration of the page 39) "must belthat if the supposed promise of the defendant to pay the condition covers the whole ground of purchase money was the sale and con- the contract, and cannot be severed veyance of the land, and the stipula- from it, or from any part of it, a breach tion to release the incumbrance upon of the condition is a breach of the it. The excuse for the non-payment of whole contract, which gives to the the money is, that the promise of the other party, the right of avoiding or vendors as to part of the consideration, resanding it altogether. But where namely, the release of the incumbrance, the condition is distinctly separable, so has been broken. But as it appears that much of the contract may be per-that Winstead and Tate have conveyed formed on both sides, as though the con-the land, and so have done in part ex- dition were not there, it will be read as ecution of the promise on the one side, a stipulation, the breach of which gives it would be unreasonable that the de- an action to the injured party." fendants should keep the land, and yet Hence, the defendants, in the ease at refuse to pay the purchase money, he- bar, acquired no right to rescind the cause the incumbrance upon the land contract for the failure on the part of has not been released. Hudson, because that failure did not. Besides, the damages sustained by cover the whole ground of their prom-the parties would he unequal, if Hud- ise to pay the money ; and if it had son's- promise should be held to be a done so, and thus a legal right of recondition precedent: because Winstead scistion had arisen to them, they could and Tate and Hudson, on the one side, not have availed themselves of it, but would loSe the consideration money of upon the terms prescribed by law, for-the sale, but the defendant's damage on the exercise of that ; that is to say, the the other side might, perhaps, amount putting the opposite party in stata guo, to but a small sum. by a return of whatever had been re-265'9 ''Hence, as the breach com- ceived under the contract. plained of goes only to a part of the The learned author proceed* :" But it consideration of the defendants, is not safe to assert that whieh is some-promise to pay, and this breach may be times said to be law, that where, in a case paid for in damages, the measure of of breach, the party cannnt have his which would be the sum of money action for damages, then the doubtful requisite to remove the incumbrance, 'clause must be read as a con- P260â– the defendants have a remedy by ac- dition ; because, otherwise, the party tion at law for this breach, "and shall injured would be without. remedy. not plead it as a condition precedent." For, 'if the reason and sense of the The same principle of law is applic- thing,' or the rational and fair eon-able to the construction of a contract, struction of the contract leads to the when it may be necessary to ascertain, rational tionchision that the parties did whether or not it contains a condition, not agree nor intend that. there should the breach of which by one party per- be this condition, then, there i* none mits the other to throw it up, and con- and if a party be, in this way, injured sider it as altogether null ; the doctrine and remediless, it is his own fault ; as to which point being generally ex- that, he neither inserted in his con-
KEY V. HENSON. VoL. 17 tract a condition, the breach of which Looking, then, to the contract set up would discharge him from all obliga- in the plea in this view, it may be in tion, nor a stipulation, for the brea ch the first place remarked, that it is no-of which he might have his action." where alleged in Lhe plea, either in The same remarks are, in the main, terms, nor by necessary hnplication, equally pertinent to the applicatjou of that the performance of Hudson was, the principle of law in question, to by the terms of the contract, to be a covenants or promises, in determining condition precedent to the payment of whether they are dependent or inde- the p urchase money for the land, or pendent. any part of it. And waiving any Indeed, the learned author, in the question as to whether, under such opening paragraph of the next succeed- circumstances, proof to that effect ing section, remarks : "It is a similar could be received under the plea, it question—sometimes, indeed, the same may be in the next place remarked, question—whether covenants are mu- that if there had been such an agree-tual iu such sense that each is a con- ment, it would have been out of the dition precedent to the other. Sec. 7, usual course of sensible contracts by p. 40. men of ordinary prudence. But, without any controlling refer- It is slated in the plea, that the de-cnce to the principle of law in question, fendants, with the consent of Hudson, which has been very generally adopted bought the land for $1100, "and exe-in this country, although, doubtless, cuted their said notes in payment often misapplied, as in cases where the therefor, one of which was the note consideration of the defendants' prom- herein sued, anti which was, by con-ise was not clearly divisible and sepa- sent of all the parties, taken in the rable, presenting no definite and dis- name of James Hudson, the said tinct standard tor compensating the James Hudson then and there agree-defendant for its breach, as in the case ing with the said defendants, that, if at bar, it is by no means easy they should give their said notes for to say, when we go back to the said tract of land, he would, imme-contract as presented in the plea, and diate!y, assign to said defendants," &c. look rationally at all its points, that The undertaking of Hudson, then, these contracting parties ever did ac- to assign, &c., was, in terms, to the tually agree, that the performance of defendants, and was not limited to the undertaking of Hudson, should be the note in suit, but equally extended a condition precedent to the payment to all the : notes. If, therefore, au in-of the purchase money. ference is to he drawn from what he Latterly, the more enlightened courts, undertook, that an agreement was in deciding questions like this, incline made by these contracting parties, more to good sense and common jus- that his performance was to be a con-tice, than to severe and technical dition precedent to the payment of rules. Thus giving fuller and freer sway the purchase money, then it would to a general rule, expressed in the case seem that this agreement, also, must of Atkinson v. Ritchie, 10 East. 530, to extend to all the notes. If that is this effect, that is to say, "that whether done, then Winstead and Tate have a thing be a condition precedent, de- conveyed away a tract of land and pends on the reason and sense of the taken notes for the purchase money, 267*] thing, as it must have been payable upon a condition that they understood by the parties, and it is to themselves cannot perform, nor com-be collected from the whole contract." pel Hudson to perform, from anything
JAN. TERM, 1856. KEY V. HENSON. that appears in the plea, otherwise slightest violence is done to sound sense than by indirection. or common justice, in giving full sway If it could be inferred that Hudson's to the principle of law which we have performance was to be a condition pre-discussed, which regards it as unjust cedent to the payment of that note that the defendants should keep the 2681 only, which, by *agreement of land, and refuse to pay the purchase all the parties, was made payable to money, because the incumbrance has him, such an undertaking would pre-not been removed, when, as in this sent no unusual feature, because part-case, the consideration for the promise ing with nothing of value, iu ex-to pay is clearly divisible aud separable, change for the note, and the condi-aud presents a definite and plain stand-tion being one, which he, himself, ard for an admeasurement of damages could perform, aud which he would be for them. Clearly, under other circum-stimulated to perform in order to get stances than these, under which these the money on the note, it would be a *defendants present themselves, P269 rational one. But, to draw such an in-instead of being turned round to a cross ference, it would be necessary to go action, they might recoup their dam-beyond the plea, and imagine things ages, as was allowed in the case of 7odd from which to draw such a conclusion. v. Summers, 2 Grattan Rep. 167, where The demurrer admits the facts Summers, in April, 1838, having agreed stated in the plea, but it does not go to sell Todd his interest in a tract of beyond it to imagine other facts, and land, with the improvements thereon, confess them also. for which Todd agreed to make for But, without prOceeding any further him 50,000 good staves by the follow-with this train of investigation, it ing Christmas (Summers to saw the may be said, with pefect safety, that timber to Todd's hand), 25,000 more the improbability is as great, that good staves by the 1st May, 1839, and Winstead and Tate should have agreed 25,000 by the 1st of the following No-that the performance of Hudson should vember. It appeared in evidence, that be a condition precedent to the pay-Todd had been put in possession of the ment of the purchase money, as that land, and continued to hold it; that in the defendants should have agreed that 1833 and 1839, he had made from 18 to it should be paid before the assign-25,000 staves, out of timber sawed by ment of Hudson. Winstead and Tate Summers, but Summers had not sawed might well have agreed that Hudson the balance of the timber, which, by might stipulate, as he did, without his agreement, he was bound to saw necessarily agreeing, also, that Hud-for Todd to work up. The action was son's said stipulation should be a con-assumpsit, by Summers against Todd, dition precedent to the payment of the to recover damages for failing to make purchase money. the balance of the staves. Todd in-When that is the case, it eannot be sisted upou Summers' failure to saw said that it has been collected from the the timber. But, the eourt, to "pre-whole contract as set out in this plea, vent a failure of justice," refused to that according to the reason and sense hold the agreement of Summers (to of the thing, as it must have been un-saw the timber), a condition pieccdent, derstood by the contracting par,ties but treated it as an independent agree-here, the performance of Hudson was ment: hut that Todd [night mitigate a condition precedent to the payment :Summers' recovery, by ally just cros.;- of the purchase money. demand of his, arising from the failure Under such circumstances, not the of Summers to saw the timber.
VoL. 17 Doubtless, if the pleader had designed to set up any other defense than that of recoupment, the frame of his plea would have been different, but the counsel in this court, seeing it bad, in that view, has endeavored to sustain it in the second one that we have taken of it. We think it equally bad in either view. The judgment will be affirmed. Cited:-18-251; 22-282.
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.