After argument, the opinion of'tbe Court was delivered by,
Phelps, J.If the authority given to the defendant to make payments to Merrill, is to be regarded as a mere licence, revocable at pleasure, then, it must be admitted, that the bringing the present action was a revocation of-that licence, and all subsequent payments made to Merrill must be considered as made without ■authority and, therefore, voluntary. And if we regard the written memorandum as evidence of a distinct independent 'contract, it would be difficult to give it any greater effect than a mere revocable licence, for want of a sufficient consideration to support it. But as the memorandum was executed extemporaneously with .the execution of the note, we are disposed, in conformity with the testimony of Merrill, to regard it as part of the original contract for the sale and purchase of the farm, and, therefore, needing no -particular consideration, applicable to this part of the contract ex-clusively,-to give it -effec-t; especially as the agreement in question was evidently intended to provide for an incumbrance on the farm, and to secure the purchaser against the supposed inability of •the plaintiff to remove it. In this point of view, the agreement must be considered as entering into the consideration of the notes, ■,as part of the terms of the purchase, and equally binding on the .parties as any other part of the transaction
The poverty of the plaintiff, as stated in the case, not only furnishes a reason why the stipulation should have been introduced, but affords strong grounds for enforcing it. The defendant had certainly a right to insist upon it for his security; and if so, it follows that the permission to make the payments to Merrill was not revocable at pleasure. We have a precedent for this, in the case Lewis vs. Holley et al. reported in Brayton. In that case, the direction was considered as an inducement-temake the *458principal contract; and there, as well as here, a third person had become interested in the direction ; and to revoke, it involves a fraud upon all concerned. Whether the agreement, and the payments made under it, would, jf properly pleaded, have been a bar to the action, is a question not involved jn the case. It would be difficult,, however, giving to th.e agreement the effect above stated, to distinguish between this case and a case of payment to the plaintift himself. The evidence of these payments was received by the county court in reduction or mitigation pf damages. For this purpose, it was undoubtedly proper. In every action of this nature, the question as to the amount due is decided with reference to the time when judgement is rendered ; and payments, made pending the suit, are to be deducted, for the obvious reason, that the judgement is conclusive on this point, and payments not applied would be Ibst to the party.
Ilubbell & Stevens, for plaintiff Hunt & Beardsley, for defendant.The objection that the evidence was not admissible under the general issue, but that a special plea, puis darrein continuance,. was necessary, might possibly have been well founded, had the evidence been offered in bar of the action ; but we are aware of no case where matter, which goes merely in mitigation of damages, is required to be specially pleaded.. From the nature of the case, it could not be ; for the supposition that it goes only in mitigation of damages, implies that it is no bar to the action.
Judgement affirmed-