Chandler v. Marsh
| Decision Date | 01 March 1831 |
| Citation | 3 Vt. 161 |
| Parties | JOHN W. CHANDLER v. EDWARD and SAMUEL MARSH |
| Court | Vermont Supreme Court |
This was an action of assumpsit upon two notes; and upon the general issue joined, the jury found a verdict for the plaintiff. Exceptions were filed and allowed to the decisions of the county court; and the same came to this court for their revision. It appears from the bill of exceptions, that at the date of the notes sued, these and two other notes were given by the defendants for the consideration money of a purchase of land by them of the plaintiff, payable, one in each of four successive years. That the plaintiff at the same time gave the defendants a bond binding himself to convey to them the land when the payments should all be made: also binding himself to suffer the defendants to occupy, possess and improve the same land, they paying all the taxes, and committing and suffering no waste on the premises. Then, on the first neglect of the defendants to fulfil the agreement on their part, said bond was to be null and void, and the plaintiff was to have right to reenter upon said land, and dispose of it to any other person as he should please without accountability to said defendants. It further appears that the defendants' counsel requested the court to instruct the jury that, there being no evidence to show that the defendants had possessed the land, the plaintiff was not entitled to recover upon that note which last became due, of the two now in suit: but the court instructed the jury to find for the plaintiff the amount of both notes and interest for the same. Upon these exceptions, the defendants' counsel now urged in argument, that, upon the first failure of the defendants in making payment, the bond was void by its own terms. That, though they might be liable to pay the first note, as there was no pretence of failure on their part till that note became payable, the failure to pay that note rendered the bond void as to all future liability of the plaintiff upon the same, and wholly removed the consideration for the remaining notes, so that no recovery could be had upon them. The answer of the plaintiff's counsel in substance was that the giving the bond by the plaintiff was a good consideration for the notes; and, if the consideration had failed, it was by reason of the defendants' neglect that they could not take advantage of their own wrong to defeat the plaintiff's rights. And further, that the consideration of the notes had not failed, as the plaintiff had not elected to consider the bond void. See 13 Johns. Rep 44. And, if judgement were recovered on the notes, the bond revived, and no injustice would be done to the defendants.
Bell & Burbank, for de...
To continue reading
Request your trial