Minor v. Edwards

• Decision Date: 31 July 1847
• Citation: 10 Mo. 671
• Parties: MINOR v. EDWARDS & PRICE.
• Court: Missouri Supreme Court

10 Mo. 671

MINOR

v.EDWARDS & PRICE.

Supreme Court of Missouri.

July Term, 1847.

ERROR TO COLE CIRCUIT COURT.

HAYDEN, for Plaintiffs. 1. That by the statute of this State, the bond sued on is assignable, and that the plaintiff, as the assignee thereof, has the same right to sue thereon for the debt therein mentioned, as the assignor had, in his own name. Digest, p. 190, § 2. 2. That the proviso in the bond that the money therein specified was payable upon the making and tendering a good and sufficient deed to said Edwards, conveying to him a clear title in fee simple to said lots of ground, is a stipulation or proviso made by said Edwards and Price for the protection and benefit of said Edwards, and is not a covenant nor obligation made by the payees of the bond; and therefore the said Edwards, to whom the deed was to be made by the payees of the bond, could waive or excuse the payees from making the deed, either by parol or by deed, prior to the payment; and the fact of such excuse or waiver may be proved, or implied from the proof of any fact or circumstance which rationally conduces to establish its existence. And for the same reasons, the defendants might have modified the stipulations as contained in the proviso, by accepting a partial performance thereof by payees of the bond. And in like manner, the payees could have been excused, &c., from the performance of a similar stipulation as the one contemplated in the proviso, had the stipulation been made by their express covenant, under seal. 3 Johns. R. 528-9, 530-1-2; Fleming v. Gilbert, 1 Johns. Ca. 22; Keating v. Price, 2 Wend. 590, 591; Langworthy v. Smith, 20 Johns. 460. 3. The declaration, and every count therein contained, is good and valid, and therefore the court erred in deciding the 2nd and 3rd counts thereof to be bad, upon the plaintiff's demurrer to the defendants' 2nd, 5th, 7th, 8th, 9th and 13th pleas; as also did the court err in overruling the demurrer to said 13th plea. 4. The court erred in not sustaining said demurrer of plaintiff to said 13th plea of defendants. 5. That the instruction given to the jury, at the instance of defendants, is erroneous, and ought not to have been given.

STRINGFELLOW, for Defendants.

1. The second and third counts set up a parol discharge of the condition of the deed, as an excuse for a failure to comply with the condition. These counts do not set up any new parol contract as a cause of action, but are founded upon the bond, and the right to recover is based upon a parol release of the condition. In the case of Delacroix v. Bulkley, 13 Wend. 71, the English and American cases are reviewed, and the rule laid down as well settled: “A sealed executory contract cannot be released or rescinded by a parol agreement.” In Allen v. Jaquish, 21 Wend. 630; this case is reviewed and fully recognized. In the case of Paul v. Edwards, 1 Mo. R. 25, the Supreme Court of this State acknowledges the same rule; and in Raymond v. Fisher & Hanson, 6 Mo. R. 30, the same principle is fully recognized and the authorities reviewed. Where a parol contract is substituted for a contract under seal, the remedy is upon the new contract, and not upon that under seal. The party cannot, by proof of the new parol contract, recover on the sealed contract. 6 Mo. R. 30; 1 Chitty Pl. 523; 9 Johns. R. 115; 2 Wend. 587; 10 Wend. 180; 11 Wend. 27; 16 Wend. 586, 630; 7 Mo. R. 530; Colgan v. Sharp, 4 Mo. R. 41; Clendennon v. Paulsel, 3 Mo. R. 320; Crump v. Mead, 3 Mo. R. 233; Helm v. Wilson, 4 Mo. R. 45.

2. Under the issues submitted to the jury, it devolved upon the plaintiff to prove a compliance with the condition. A mere deed from the vendors was not sufficient evidence. It was necessary to show title in the vendor to show that the deed conveyed title to Edwards. The vendee is an adverse claimant as to the vendor, and can dispute his title. The evidence to show an acceptance of the deed tendered, was immaterial, or at least insufficient under the issue tried. The first and fourth counts averred a performance of the condition, but the evidence went only to show a parol discharge, or a substituted parol agreement, and did not entitle the plaintiff to recover. Raymond v. Fisher & Hanson, 6 Mo. R. 30, and cases there cited; Rector v. Purdy, 1 Mo. R. 286; Frost v. Pryor, 7 Mo. R. 315; Parrott v. Browning, 8 Mo. R. 693; 3 Serg. & Rawle; 9 Mo. R. 477, Macklot v. Dubreuil.

3. The evidence of the witness was insufficient to prove a tender of the deed, and acceptance. He did not show that the deed was delivered at any time before the commencement of the suit, and there being no date, there is no presumption as to its delivery. The only evidence of a delivery was that of the witness, and upon this in no event could the plaintiff recover. The 14th plea put in issue the title of the vendors, and upon this issue the proof of title was thrown on plaintiff.

4. The whole declaration is defective. No count of the declaration making profert of the deed alleged to have been made to the defendant, Edwards, but alleging simply the making a deed, and leaving the question of its construction to the jury. 8 Mo. R. 695; 1 Bibb, 283; 3 Coke, 370.

5. The plaintiff was not entitled to sue in his own name, the bond not being assignable. Our statute, making bonds and notes assignable, evidently contemplates that the instruments, although differing in one respect, must in others be alike. It could not have contemplated that an instrument should be assignable merely because it might be under seal, which if not under seal, would not be assignable. An agreement to pay money, not under seal, upon a contingency that may never happen, is not assignable. The bond here sued on is payable on contingency that may never happen; and hence not assignable. Thomas v. Cox, 6 Mo. R. 508; 11 Mass. 143; 15 Mass. 387; Chitty on Bills, 154, 155.

MCBRIDE, J.

Minor brought an action of debt in the Cole Circuit Court against Edwards and Price upon the following instrument of writing, to-wit:

$1,390. Twelve months after date, we, or either of us, promise to pay Henry P. Paulsel, Jacob Paulsel and Joseph Boggs, the sum of thirteen hundred and ninety dollars, being the purchase-money for the following lots of ground in the city of Jefferson, county of Cole and State of Missouri, to-wit: out-lots number fifty-four (54), containing twenty acres; number seventy-one (71), containing eighteen acres and 29-100, and number seventy-two (72), containing twenty-six acres and 95-100; provided, however, that this bond shall not be payable until said Henry P. Paulsel, Jacob Paulsel and Joseph Boggs shall make, execute and tender to John C. Edwards a good and sufficient deed, conveying unto him, said Edwards, a clear title in fee simple, with warranty, to said lots of ground. Witness our hands and seals, this 7th day of September, 1845.

JOHN C. EDWARDS,

[Seal]

THOS. L. PRICE.

[Seal]

The declaration contained four counts. The first sets out the above instrument of writing according to its legal effect, and makes profert thereof. It avers an assignment of the bond by the payees to one William B. Smith, and by Smith to the plaintiff; and that on the 3rd October, 1845, the said Paulsels and Boggs did make, execute and tender to Edwards a good and sufficient deed, conveying to him a clear title in fee simple to said lots of ground, with warranty, &c. The second count is like the first, with an additional averment that the deed tendered to Edwards was by him accepted as a compliance on the part of said payees with the proviso in the bond sued upon. The third count is like the first and second, except that it concludes by averring that the payees did make, execute, tender and deliver to Edwards a good and sufficient deed, & c., which deed he...