Debt by Bates against Muchmore on a sealed note for 200 dollars* Pleas, 1st, failure of consideration; 2dly, want of consideration. General demurrer to the pleas, and judgment for the plaintiff below. The defendant appeals.
The first plea states, that the note was given to Bates, in consideration that one Leonard should make the defendant a* good title to a certain tract of land, on or before the 15th of July, 1822; and avers that Leonard, having no title, neither did nor could, on or before that day, or at any time after, make the deed. In this case, the note was payable on the same day on which the deed was to be executed. The acts were to be concurrent; and an execution of the title, or at least an offer to execute it, was first necessary, before a suit could be supported for the consideration money. Jones v. Gardner, 10 Johns. R. 266. The principle is the same, whether the making of the title by Bates himself, or by Leonard, was the consideration of Muchmore’s promise to Bates. If the person who was to make the title had none to make, there was a failure of consideration (1). The eases in 1 Wash. 296, 389, cited for the appellee, do Dot apply* They go to show, that the obligor cannot avail himself of any defence he may have had against the obligee; if, without disclosing his objection, he induce an innocent person to purchase his bond (2). If the position assumed in the argument by the appellee be correct — that Leonard was the original creditor, and that Muchmore fraudulently induced Bates to purchase the debt- — that matter should have been specially replied. An issue might have been then formed, to which the cases cited would have been applicable. But here the plea, as it stands, is a good bar to the action; and the demurrer admits it to be true; The judgment, therefore, should have been for the defendant.
To the second plea no objection has been made. It is good.
Per Curiam.The judgment is reversed, with costs* Cause remanded, with directions to permit the plaintiff below to withdraw his demurrer, and reply to the pleas.
Test, for the appellant. Ray, for the appellee.Vide Leonard v. Bates, ante, p. 172, and notes.
Acc. Luderig v. Croll, 2 Yeates, 464. — Carnes v. Field, Ibid. 541.