Several questions have been discussed, in this motion, some of which will not require a particular examination.
The first count of this declaration is assumpsit for lands sold; and as the plaintiff has sold and conveyed land to the defendant, there is no reason why he should not recover, unless there is some special contract to prevent, or unless he has received his pay.
The defendant claims, that he has made payment according to the terms of his contract.
To determine whether he is correct, we must advert to the stipulations of the contract, and see what has been done under it.
By the deposition of Mr. Martin, it appears, that Elias Holt, as agent for the defendant, contracted with the plaintiff, to purchase the land in question for 1100 dollars; 100 dollars in cash, and two notes of 500 dollars each, to be endorsed by James De Forest and the defendant; and the deed was to be delivered, when the defendant had complied with his engagements: that Holt afterwards called, and requested the plaintiff to accept the two notes mentioned in the second count of the declaration, while they were not endorsed by the defendant; which the "plaintiff declined to do, for want of such endorsement: that Holt then stated to *556him, the plaintiff, that the defendant was in New-York, every days, and proposed to procure his written promise to endorse said notes, the first time he should come to New-York: that such a writing, dated December 1st, 1836, was sent to the plaintiff, by the defendant, promising that he, the defendant, would endorse said two notes, when he should eome to New-York; and about the same time, the plaintiff delivered the deed of the land for which this suit is brought, to the agent of the defendant. It was also proved, that the defendant had since been often in New-York, but had not endorsed the notes. The notes were afterwards lodged in a bank in New-York ; and, when due, were, by a notary, protested. In January, 1838, judgment was rendered on said notes against the maker and endorser ; and the execution was returned unsatisfied, both being then insolvent.
The defendant claims, that due diligence was not used to find the maker of the note ; and that no legal demand was made. The plaintiff claims, that due diligence was used.
If the case was simply this, that the plaintiff had agreed to sell his land to the defendant, for 100 dollars in cash, and two notes, of 500 dollars each, against Pendleton, endorsed by De Forest, and received the money and notes ; it could hardly be denied, that he took the notes at his own risk ; and that, upon the receipt of the money and notes, his land was fully paid for. Whitbeck v. Van Ness, 11 Johns. Rep. 409. But in the case before us, something more was to be done. The plaintiff not only contracted for the cash and notes, but that these notes should be endorsed by the defendant. Until that was done, the terms of the contract were not satisfied, and payment was not made. And, when Holt proposed to the plaintiff, to receive said notes ; and the plaintiff objected, because the defendant had not endorsed them ; it was not claimed, on the part of the defendant, but that the plaintiff had a right to require such endorsement. But the agent, in reply, informed him, that Steele was in New-York, every few days; and then proposed to the plaintiff to take Steele’s written promise to endorse the notes, when he should come to New-York; which was assented to, by the plaintiff. The defendant now claims, that the plaintiff, by accepting the promise of Steele to1 endorse, waived the endorsement itself, and substituted the promise in the place of it; and that, as *557the delivery of the notes so endorsed, would have been payment, the delivery of the notes without endorsement, accompanied with the promise to endorse, is also payment.
That the plaintiff considered this endorsement by the defendant, as an important part of his contract, is apparent from the fact that he refused to receive the notes until so endorsed. It is claimed, however, that he has waived this part of the contract. Is this proved ?
After the plaintiff refused to take these notes without endorsement, the defendant’s agent proposed that he would procure a written agreement from the defendant to endorse them. The proposition comes from the defendant. It was one entirely for his benefit. No inducement is held out to the plaintiff; but it might be important to the defendant to get the deed, that he might sell the land. And as the notes were not due under nine or ten months, and as it was represented to the plaintiff, that the defendant was very often in New-York, and promised to endorse the notes, the first time he came there; there is no reason to believe, that the plaintiff meant to waive his right to endorsement, or to receive the notes unendorsed, as payment for his lands ; but to accommodate the defendant, he was willing so far to dispense with the letter of the contract as to deliver the deed, upon the receipt of the defendant’s written promise that he would endorse the notes, at a time long before they would become due; of course, long before he could make any claim, by virtue of such endorsement.
By taking this promise to endorse, he certainly could not have intended to waive the endorsement, but merely to suspend it until the defendant came to town ; and it is equally certain, that all the ostensible object of the defendant was obtained, by his receiving the deed. The variation, then, made in this contract, was, not a variation as to the mode of payment, but rather as to the means of enforcing it, as the contract at first stood. The plaintiff might enforce it, by retaining the deed. That right he gives up, upon the receipt of the written promise. But he certainly did not mean to give up the thing itself, which the holding of that deed was intended to secure, viz. payment for his land. But he gave up the deed as the security, and substituted this promise to endorse. The object, in both cases, was the same — to com*558pel payment, by means of these notes to be endorsed by the -defendant. This was the original contract; and that contract remains unchanged. Strange, indeed, would it be, to say, that when a payment was to be made, by endorsed notes, an agreement to endorse such notes, should, of itself, be a payment. This agreement is, in fact, nothing more than was implied in the original contract itself, and would have been unnecessary, except to repel the inference that the plaintiff waived the endorsement, by giving up the deed and receiving the note.
It has, indeed, been holden, in the state where this contract was made, that where goods are sold and notes taken, the taking of the notes is not of itself payment, unless there is an express agreement to that effect. Porter v. Talcott, 1 Cowen 359. Here, so far from being an agreement to that effect, every circumstance tends to shew, that this could not have been intended. Any other construction would be, to allow the defendant to set up the violation of one contract, to defeat the real intent of the parties in another. We see nothing in this transaction which requires us to give a construction to this contract so harsh and inequitable.
It is said, that the notes became the property of the plaintiff, and so became payment. If they did become the plaintiff’s property, it would not follow, that they were, at all events, payment. In Johnson v. Weed & al. 9 Johns. Rep. 310., notes were given for goods sold ; when the note was left, the plaintiff objected that it was not endorsed ; the defendant said, that would make no difference ; it was held, that this was not such a payment as to protect the defendant from a suit for goods sold and delivered. These notes were left with the plaintiff, by the defendant, in part execution of a contract, which it was his duty to fulfil, and which the plaintiff had a right daily to suppose, he was about to fulfil; and while in this state of suspense, the plaintiff’s right inchoate, he might hold these notes as a security for the performance of the contract on the part of the defendant. If he received the money upon them, that would be payment for his land. If he did not, he would be bound to render a reasonable account for the notes.
It may be asked, upon what principle is that account to be rendered ? Is he to be held to the same terms as an en*559dorser ? Shall the defendant, who has neglected, in face of his contract, to become an endorser, claim the rights of an endorser 1 The defendant neglects or refuses to assume that responsibility. It is, then, too much for him to claim, that the plaintiff shall be held to the exact situation of an en-dorsee. These rights of the mercantile law must be mutual. At least, the party who is the blamable cause that they are not so, cannot complain if he is held to that rule.
But it is said, as these notes were left with the plaintiff, shall he do nothing with them ; and shall the defendant then lose his hold upon his endorser? If any injury in this way results to the defendant, it is to be observed, that it arises entirely from the violation by him of his own contract. Aside, however, from this consideration, under the circumstances in which these notes were left with the plaintiff, it seems to us, that he has done all that could reasonably be required of him. He put them into a bank for collection; they were in time handed to a notary for demand and notice. His clerk swears, that the usual enquiries were made for the maker, at the proper time, and he could not be found ; and that due notice was given. They were then put in suit, and judgments obtained, but no collections made. Without, therefore, enquiring whether all the diligence had been used, which was necessary to subject an endorser, the court are of opinion, that the defendant has no reason to complain.
The plaintiff having sold his land to the defendant, to receive notes endorsed by him, payable at a future time, in payment; not having received such notes, and the time of payment having passed ; and the contract having been executed, on the part of the plaintiff; we see no reason why he cannot recover on the general count in his declaration for land sold. Brooke & al. v. While, 1 New Rep. 330. Porter v. Talcott, 1 Cowen 376.
There is to be no new trial.
The other Judges were of the same opinion.
New trial not to be granted.