This was an action of assumpsit in the Rich-land Circuit Court, on.two promissory notes. Besides the General issue, the defendants put in two special pleas. The rst set forth that the notes were executed upon the express consideration that the plaintiff would make, execute and deliver to the defendants, or cause the same to be done, a general warranty deed for a certain lot in the town of Olney, (describing it), and that said deed of conveyance should be made before the notes were to be paid, and on the express consideration that the deed should be made before the payment of the notes, averring that the deed has not been executed, and therefore the consideration has failed. The second plea is in all respects like the first, except that it alleges a partial failure of the consideration. General replications were filed to these pleas. The jury found for the defendants, and exceptions were taken to ‘the refusal of the court to grant a new trial, and the suit is brought here by writ of error, the plaintiff assigning as error the instructions given by the court for the defendants, and overruling the motion for a new trial.
From the bill of exceptions, it appears that at the time of making the notes, a sale of a stock of goods, and a house and lot in Olney, were made by the plaintiff to the defendants. The goods were a stock which the Martins,' brothers, had purchased of the plaintiff about four months previously, and to which they had added,, by their own purchases, four hundred dollars or more of stock. The house and lot were the same which the Martins bought of the plaintiff with the goods, and which the plaintiff procured to he conveyed to them by deed from one Parker, in-whom the title was vested at the time of this sale and purchase. The notes were dated August 21st, 1856, and payable, one on the 1st of June, 1857, and the other on the 1st of June, 1858. At the date of the notes the sale to the defendants amounted to $910 for the goods, and $1,000 for the house and lot. The Martins had not paid the plaintiff for the house and lot, nor the full amount due for the goods when they were turned over to the defendants, but by the contract and agreement of all parties, plaintiffs, defendants and the Martins, the defendants were to have the goods for $910, and the house and lot for $1,000, and of this, the defendants were to pay to the Martins $460, and to the plaintiff $450, and this on account of the goods, and were to give their notes to the plaintiff for $1,000 for the house and lot, which are the notes in suit. It seems the reason why plaintiff made the sale was, that he was not satisfied with the Martins—and the Martins were not satisfied, they thinking they did not sell goods fast enough, and the plaintiff was not getting his pay as fast as he desired. The Martins then agreed with the plaintiff, if he would find some person to purchase the establishment, they would consent to sell, and accordingly, the plaintiff made the sale to the defendants. At the time of the sale to the defendants, it was arranged and agreed with them, that the deed for the lot, which the Martins held, should be given up, and another deed should be procured from Parker through the instrumentality of the plaintiff, who was to get the title from Parker. The deed to the Martins was given up by them to the defendants, and it has been in their possession up to the time of the trial, so far as known, and the goods and house and lot were delivered up to the defend-” ants. There was no proof that the defendants had ever requested or called on the Martins for any further deed or title, ana they have never made any other. It was not shown whether Parker ever made the defendants a deed or not, or that plaintiff had ever procured from him a deed to the defendants. With the proof of some credits claimed by the defendants, the cause went to the jury on this evidence.
The court, on behalf of the defendants, instructed the jury as follows :
“1. If the jury believe from the evidence that the plaintiff was to make these defendants a title to the property (the lot of ground), and it appears from the evidence that a deed had been made to Martin for it, and Martin has never conveyed the same property to defendants, or to some one else who has since conveyed to the defendants, then the plaintiff cannot recover on the notes, if the jury believe the notes were given for a deed to said property.
“ 2. If the jury believe the notes were given in consideration that Wilson would make, or cause to be made, a deed for the house and lot, and that the said Wilson, or no one else for him, has ever made such deed, then the plaintiff cannot recover for the amount due on the notes sued on.
“ 3. If Parker conveyed the lot to Martin, the title conveyed to Martin thereby cannot be relinquished by a mere surrender of the deed; it can only be done by Martin making and delivering his deed; and if he has made no deed, whatever title he -got from Parker, is still in Martin, and Parker or no one else could convey that title to defendants, except Martin,”
These instructions, though not very carefully drawn, are appropriate to the issues and proofs in their support. If there was any answer to the defense set' up in these pleas, it should have been replied specially. The pleas being good, and sustained by the proof, and the instructions conforming, there can be no ground for reversing the judgment. The defendants, by this defense repudiate the contract, and consequently lose all right to the house and lot; and as the Martins, who hold the title, have been paid for it by the plaintiff in this arrangement with the defendants, the plaintiff must, on failing to recover these notes, be entitled to a conveyance of the lots on bill filed against the Martins, and probably, to the rents also, as against the defendants, in a suit brought for such purpose.
The judgment is affirmed.
Judgment affirmed.