The opinion of the court was delivered by
Collamer, J.Were the respective promises of these parties mutual, independent promises, each constituting the consideration for the other, or were they dependent, and the performance of the one a condition precedent and consideration for the other ?
I. Had this whole contract been included in one instrument, there might have been some ground for insisting that the execution of the deed by the plaintiff was to precede the defendant’s liability to pay. But when each party takes a separate instrument to secure the undertaking of the other, it is conclusive that they are independent. Here the defendant gave his unconditional note, and took of the plaintiff his promise afterwards to execute a deed. With that promise he was then content, and to that he must look. He cannot now, by parol, add a condition to his note.
II. Has the consideration of this note failed ? When a *208note is given for something done, or supposed to be done)' execute(j an¿ perf0rmed, at the time, and that wholly fails, ^ constitutes a defence. The case of Jackson v. Warwick, and the case of Dickinson v. Hale, cited by the defendant’s counsel, are of this character. But what was the consideration of this note ? It was the plaintiff’s promise to execute the deed. That promise remains in full force, as binding as when made.
Both these points are fully decided in the case of Spiller v. Westlake, 2 Barn. & Adol. 155. 22 Com. Law. Rep. 49.
III. It is said the plaintiff’s promise for a deed was void, by the statute of frauds, and, therefore, constituted no consideration. The case does not show that the promise was by parol. And even if it did so appear, the promise is not void by the statute. It is only voidable by the promissor, and good until avoided by him. The defendant has all for which, he gave his note, the plaintiff’s promise, and no fraud has been practised upon him. Shaw v. Shaw, 6 Vt. R. 69. Philbrook v. Belknap, id. 383.
Judgment affirmed.