delivered the opinion of the Court:
It is not important to examine but one of the grounds assigned for error in this cause. That is the decision of the Court on the demurrer to the third amended plea.
This plea contained facts, which, if proven, would form, in our opinion, a clear failure of a part of the consideration on which the note must have been based. It certainly must have been one of the inducements to the making of the note, that the makers should be entitled to and receive these proportions of the dividends from the association on the sale of the lands. If the plaintiff below agreed to pay the amount bid for the choice of lands, and it was a condition that be should, by the rules of the association and of the sales of the lands, pay the amount bid before he could be entitled to a dividend from the proceeds of the sale, from the company ; then, if by such refusal or neglect to pay, by the plaintiff, the defendants were prevented from receiving their proportion thereof, the terms upon which the contract was made, were not complied with to the extent of the dividends he would otherwise have been entitled to receive, which would be a matter of proof on the trial. We are of opinion the plea was substantially good ; and that the Circuit Court ought to have overruled the demurrer to it. The judgment of the Circuit Court is reversed with costs ; and the cause is remanded with instructions to the Circuit Court to proceed in the cause in conformity to this opinion.
Judgment reversed.