Gregg v. Macey

• Decision Date: 31 January 1847
• Court: Missouri Supreme Court
• Parties: GREGG v. MACEY & WINSTON.

10 Mo. 385

GREGG

v.MACEY & WINSTON.

Supreme Court of Missouri.

January Term, 1847.

ERROR TO PLATTE CIRCUIT COURT.

ALMOND, for Plaintiff.

THOMAS, for Defendants. There are two questions presented on the face of the pleadings for the consideration of the court: 1st. Does the instrument described in the plaintiff's declaration give him a right of action? and if so, 2nd. Have the facts been properly pleaded? The defendants insist that the instrument as described in the declaration is void for uncertainty in this, that it does not show with whom the covenants were made. Tate v. Barcroft, 1 Mo. R. 115; Perkins v. Reed, Administrator of Nash, 8 Mo. R. 33. Nor what act the covenantors were to perform in relation to “lot number four;” and is in other respects ambiguous and uncertain. If “sufficient and legal words properly disposed” are essential to the validity of all instruments of this nature, the bond which is the foundation of this action is certainly void. 2 Blacks. Com. 298-308. The declaration is bad. 1st. Because the breach varies from the sense and substance of the contract in alleging a failure to do that which defendants never covenanted to do. 1 Chitty's Pl. 367-8. 2nd. For duplicity in assigning two breaches in one count of the same specific stipulation. 1 Chitty's Pl. 369.

MCBRIDE, J.

The plaintiff brought his action of debt in the Platte Circuit Court against the defendant on a bond for the conveyance of two lots of ground in the town of Winston, in Platte county, Missouri, with a condition underwritten. The declaration sets out the condition of the bond as follows: “That whereas the said Joseph Winston and William M. Macey that day sold to Riley Gregg lot number twenty-eight, and have sold to Riley Gregg and Thomas Gregg lot number four in the town of Winston, in Platte county, Missouri, for the payment of which the said Riley Gregg and Thomas Gregg had that day executed their promissory notes due and payable in one, two and three years, with ten per cent. interest from date until paid. Now as soon as the said Joseph Winston and William M. Macey should make a good and sufficient deed of lot number twenty-eight, and to Riley Gregg and Thomas Gregg lot number four, then the said writing obligatory was to be void, otherwise to be and remain in full force.” The declaration then proceeds to assign as breaches that the defendants have not made, &c., a good and sufficient deed to lot number twenty-eight to said Riley Gregg, &c., nor have they, &c., made to the said Riley Gregg and Thomas Gregg a good and sufficient deed for said lot number four, according, &c. The defendant pleaded nil debet, non est factumwithout affidavit, and a special plea setting forth that through mistake the defendants had become bound in said bond, when in fact and in truth it was the intention of the parties that the said plaintiff should be bound, and concluding with a verification.

The plaintiff took issue on the second plea and filed his demurrer to the first and third pleas of ...