1. The court erred in striking the special plea, for, disregarding allegations of fraud and duress contained in it, which may be treated as surplusage, the plea was in substance one of want of consideration for the note sued on, and, if established, would be a good defence to the action. If the note was given as a promise to pay for doing something on the part of the payee which he was already bound to do and which he refused to do, using that refusal as a means of morally coercing the makers of the note to execute it, the payee parted with no consideration nor did the makers get any.
2. Upon the assumption that at the time of taking a conveyance from Morrison the Halls purchased from him the mining and transportation machinery and implements which were then upon the premises and gave the note sued on for the price thereof, and the Halls went into possession or were then already in possession of the realty conveyed to them by Morrison, and the personalty so purchased was accessible to them, Morri*317son would not be bound to make any further delivery of the personalty unless he stipulated in the contract of sale for the making of subsequent and more formal delivery. Possession of and title to the realty on which the personalty was would be enough to invest the purchasers with full dominion over it, unless there was some obstacle to the exercise of such dominion; and it could and should be presumed that no other or different delivery was contemplated by the parties, unless something was expressly mentioned from which a different intention could fairly be inferred.
3. The trial took place on a plea alleging that the note was in part without any consideration whatever, and another plea of total failure of consideration. There was evidence tending to show that in the contract for the sale of the personalty it was agreed and understood that Morrison was to get up the tools, &c., and put them where the Halls could get them, and that he subsequently refused to do this, and the Halls never did get them. If this was the truth of the case, delivery of the property to which this understanding was applicable was never completed, and the court was mistaken in holding and charging that notice of where the property was and ability to get possession by the exercise of ordinary diligence would be constructive delivery unless at the time of the trade Hall requested the plaintiff to actually deliver the property. There was no use for such a request at the time of the trade, for that was not the time contemplated in the agreement of the parties. The getting up of the tools, &c., was to be done afterwards, and a request subsequently made would be more in line with the agreement and certainly as effectual as a request made at that time. For the errors indicated there ought to be a new trial. Judgment reversed.