McGowen v. West, 7 Mo. 569

Opinion of the Court, delivered by Scott, Judge. West sued McGowen by petition in debt, on an instrument of which the following is a copy : Due John W. West four hundred dollars, to bear ten per cent, interest from the 25th day of December, 1839 till paid, this 4th day of April, 1840. David McGowen. The defendant pleaded that the consideration of the note was the price of a tract of land agreed to be conveyed to him by the plaintiff, and that the agreement was by parol: a demurrer was filed to this plea, and the demurrer sustained. The plaintiff had judgment, and Mc-Gowen has brought this writ of error.

It is assigned for error, that the judgment was for a less sum than the plaintiff was entitled to, the interest .being less than was due at the rendition of the judgment, This was an error in favor of the defendant, and he cannot take advantage of it; Williams v. Guyn,2 Saunders, 476, (8.) It is next objected, that the instrument sued on is not a note within the statute authorising a suit by petition in debt. It is said there are no words of promise on it: it is a mere acknowledgment. The statute authorising a su^ petition in debt, allows it on all bonds or notes for directpayment of money or property.

Many instances might be shown in which it has been held, that the instrument set out in the petiton is a good promissory note ; 2 Cowen, Russell v. Whipple, 536. ^ ^ ^ edgement of as^bUows'3’™3 “Due A. B. dollars,” is a good promissory note, upon which suit debt wül°íie.Ín maldno-^pa-rol contract to may^or ^ay the protection of the statute he will confess the agreement on the statute, anee wíu * bé enforced against him.

If upon the sale of land by the vendeehas for6the3 purchase money, vendor recover the ^eyamount of Jhenote, if he convey “the ^¡thing which would right to £^¿”d t ttle The judgment of the court in sustaining the demurrer ^1® defendant’s plea, is also assigned for error. It is contended that the obligation of the contract should be reciprocal: that, .as by the statute of frauds the plaintiff was n0£ bound to perform his agreement, so the defen-r o’ dant should not be held to the performance of his under-* faking.

The statute of frauds does not make void parol agreements for the sale of lands : it only declares that no action shall be brought on such contracts, Person making a parol contract to convey lands, may or may not insist on the protection of the statute of frauds. If he will confess the agreement, and not insist on ^ie shatmt®, its performance will be enforced against him. Such cases are not within the mischief of the statute. The observations of Lord Ridesdale in the case of Lourenson v.

Butler, 1 Sch. & Lef. 13, who thought that the contract ought to be mutual to be binding, and if one Pai'fy could not enforce it the other might, were not sustained by authority: nor has the weight of his name J ° been sufficient to prevent the opinion delivered m that case from being overthrown. The courts of law and chancery in England, both before and since the decree in that case, have held that it was sufficient, if the contract of sale was signed by the party to be charged; Egerton v. Matthews, 6 East.; Allen v. Bennett, 3 Taunton; Seton v. Slade, 7 Ves.; Fowle v. Freemon 9 Ves.; Western v.

Russell, 3 Ves., and Beames; Closon v. Baily, 14 John, R. 487. If upon the sale of land by parol contract the purchase money paid, the vendee cannot recover it back, if the vendor is willing to convey the land, and has done nothing which would give the vendee a right to rescind the contracJc; Dowdle v. Comp., 12 John, 450 ; Ketchum v. Evertson, 13 John R., 358 ; Gray v. Gray, 2 J. J.; Marshall; we can see no difference in principle between this case and those where the money has been actually The agreement to convey is not void: it may be relied on for some purposes; 3 Mon., 170, 5 Littel 98.

It was remarked by the judge, who delivered the opinion of the court, in the case of Barnes & Al v. Wise, 3 Mon. 170, that it had been held, that a defendant sued on a note given in consideration of a parol agreement to convey lands, may avail himself of the statute as a defence, on the ground that a contract, on which no action will lie is not a valid consideration for another contract, in cases where mutual promises form the consideration of agreement.

This observation was made in a suit in chan-eery, and the opinion of the court in the cause in which it was delivered, shows that the plaintiff must be in fault before the party giving a promissory note can rescind the contract. In the case before the court the plea of the defendant does not set forth any circumstance from which it can be inferred the plaintiff is in fault; and in our opinion it is necessary to aver and prove the same facts, in order to avoid the note that the party would have to prove, had he brought an action to recover the money, if it had been paid. Judgment affirmed.