Bircher v. Payne, 7 Mo. 462

Opinion of (he Court, delivered hip Scott, Judge. Bircher, as assignee of one Gonsollis. brought an .action of assumpsit against Payne, on a promissory note, dated 25th November, 1836, for the sum <»f four hundred and ■ eighty-five dollars, payable two years after date.

After the general issue, and a ('lea of set-oif, the defendant pleaded three special pleas in bar, growing out of a contract made between Gonsollis, the payee, and Payne, at the time of the execution of the note-; The pleas alleged that at the date of the note sued on, Gonsollis, the payee, agreed under seal, with Payne, that, whereas, Payne had given to Gonsollis two notes, dated 25th November, 1836,-each for four hundred and eighty-five dollars ; payable, one of them in one, and the other in two years after date; the same being part’ of the purchase money of a tract of land situate in St.

Louis ■ county : now, should there be any suit or disturbance concerning the-said land, the said notes shall not be paid until' the same has been entirely g<}t rid of and cleared away, and then to be deducted from said notes such amount of lawyer’s fees and other expenses as sail Payne shall pay on account thereof: and that at the same time the said writing obligatory and the said notes were mutually delivered : that afterwards, one Taylor claiming title to said land, adverse to that of Gonsollis, commenced against said Payne an action of trespass on account of said land, in the St.

Louis circuit which is now pending : that the said Payne hath retained counsel to defend the same; and that the note sued on is one of the two notes in the said writing obligatory mentioned. There were two other pleas nearly similar to the foregoing. To these three pleas, special replications were filed, which were demurred to, and the demurrers sustained. The plaintiff then took a nonsuit, and sued out his writ of error.

A gave his notes for the ^"purchase money of a rPn7)m triiPrat land, and, at agreed under geaj that if there should be any s.uit concerning the land, the ñoMmpaid1 jJ®^11® «me tirely got rid awav^and6^ tIie ex> penses of the suitweretobe deducted from Held, that this agreement not set up in bar to a suit on the notes, as it did not amount to a defeasence, or a release. The party aggrieved had his action on the covenant The breach of contract charged in these pleas do not amount to a defeasance, nor to a release. The pleas form no bar to the action.

The parties have agreed that this note shall be paid two years from its date, and a separate and dis-l é/ i tinct agreement, varying the time of performance, not amounting to a defeasance or a telease, is no defence to an action brought on the note. If the agreement set up in bar ° ° r by the defendant is violated to his prejudice, he may have his action. This is like the case of an obligee covenanting . ° ° not to sue the obligor for a certain lime; it does not amount to a defeasance, nor can it be pleaded as such; but is a covenant only for a breach of which the obligor may bring his action. 2 San.

R. 47 ; Atwood v. Lewis, 6 Mo. Rep. The defendant having demurred to the plaintiff’s replications, and his pleas being held bad, the judgment will be reversed, . . the cause remanded.