Thompson v. Crutcher

• Decision Date: 31 January 1858
• Citation: 26 Mo. 319
• Parties: THOMPSON, Respondent, v. CRUTCHER, Appellant.
• Court: Missouri Supreme Court

26 Mo. 319

THOMPSON, Respondent,

v.CRUTCHER, Appellant.

Supreme Court of Missouri.

January Term, 1858.

1. In an action on a promissory note, an answer, stating that the consideration of the note was the sale of a certain tract of land, and that the plaintiff (the vendor) had not, at the time of the sale, “title to a portion of the land sold,” is insufficient to set up the defence of a partial failure of consideration.

2. A. bought a tract of land of B. and gave his promissory note payable at a specified time for the purchase money; B. at the same time gave his title bond to A. conditioned for a conveyance at the time specified in the note. Held, that the promise to pay the purchase money, being by a distinct and separate instrument, was not dependent upon the covenant to convey; that B. might maintain an action on the promissory note without offering to make a conveyance.

Appeal from Buchanan Court of Common Pleas.

The following is the petition in this case: “The plaintiff, William N. Thompson, states that the defendants, W. H. Crutcher, R. M. Crutcher and Robert C. Mosely, on the 25th day of April, 1857, executed to the plaintiff their promissory note, and obligation of said note, binding themselves to pay to the plaintiff $15,500 on the first day of October next following said date, for the consideration and sale and purchase of 540 acres of land. Said note is due and unpaid and is filled herewith. Wherefore plaintiff prays judgment for $15,500 and interest and costs upon said note.”

The note is as follows: “On the first day of October next, we promise to pay William N. Thompson fifteen thousand five hundred dollars, being the purchase money in full of five hundred and forty acres of land, in Buchanan county, Missouri, this day purchased of said Thompson by W. H. Crutcher, and being the same land for which said Thompson has this day executed his title bond to said Crutcher. Given under our hands this 25th day of April, 1857. [Signed] W. H. Crutcher, R. M. Crutcher, Robert C. Mosely.”

The following is the title bond referred to: “Know all men by these presents, that I, William N. Thompson, am held and firmly bound unto William H. Crutcher in the penal sum of thirty thousand dollars, for the payment of which well and truly to be made I bind myself, my heirs, executors and administrators firmly by these presents. Sealed with my seal and dated this 25th day of April, A. D. 1857. The condition of the above bond is such, that whereas the said William N. Thompson has this day sold to the said William H. Crutcher the following described tracts, pieces or parcels of land [describing them] for the sum of $15,500 for all of said land, payable on the first day of October, 1857: Now if the said William N. Thompson, on the payment of said sum of money at the time aforesaid, shall convey said described premises by a good and sufficient deed of general warranty to the said William H. Crutcher, his heirs or assigns, then these presents shall be null, void and of no effect; otherwise to remain in full force and virtue in law. And the said Thompson further binds himself to give possession of the dwelling house on the tract on which he resides at the time the sum aforesaid is paid to him; of the farm land he is to be permitted to retain possession a sufficient time...