— The action in this ease was brought by Bradburn against Burget, and the complaint is founded upon a written agreement executed mutually between Burget and one Jones, dated March 11th, 1857. The substance of the writing is, that Jones did, on that day, sell to Burget a certain sixty acres of land, for which Burget had that day received from Jones and one Ilolley a title bond, Burget agreeing “to let Jones have all over $500 that the land would fetch” between that and January 1st, 1858, with one reasonable payment bearing interest, and agreeing further, that he would take $500 for the land at any time before January 1st, 1858, and deed the same to Jones at his, Jones’, election. The complaint alleges that Burget sold the land within the time for $600, and refuses to. pay to Bradburn, who had become the assignee of Jones’ interest in the contract, the $100 overplus. An amended answer was filed, of three paragraphs :
1. The general denial.
2. Want of consideration.
3. That after the execution of the written contract, and *485before the assignment thereof, the said Jones requested and urged defendant to sell the land to Bradburn, the plaintiff', and in consideration thereof to take from said Bradburn two promissory notes, one on one JBuser and the other on one Bails, both to be due before January 1st, 1858, and in consideration of the further sum of 8300, for which Jones requested that Burget, the defendant, should take Brad-burn’s notes, to be due December 25th, 1858, and December 25th, 1859; that defendant declined; that thereupon Jones agreed to guarantee and procure the payment of the Huser and Bails notes before January 1st, 1858, and the notes of Bradburn when due, and that in case the notes were not paid when due that he, Jones, would, and then did agree to waive any interest whatever in the said written contract; that defendant accepted the proposal and agreed on such terms with Jones, and thereupon sold the land to Bradburn on the terms proposed, and put Bradburn in possession of the land, but without conveyance; that the notes were not paid, nor did Jones make good his guarantee; but, after holding the land two years without payment, Bradburn surrendered the same to defendant, who, long afterwards, sold the same to another purchaser.
A demurrer to the third paragraph of the answer, on the ground of want of 'sufficient facts, was sustained.
By the complaint, and this paragraph of the answer, it clearly appears that the defendant was not required by his contract with Jones, to sell the land to Bradburn on the terms offered, as the payments were not such as were stipulated for in the agreement. When, therefore, Jones proposed to make his right to claim any part of the profit upon this sale to depend upon the prompt fulfillment of his contract by the purchaser, and thereupon the defendant, as the paragraph avers, accepted the proposal, the subsequent failure of the purchaser to make the payments as they became due was- a full answer to the complaint; and the moi’e apparent is the sufficiency of the answer when, as in this case, the failure i’esults in an abandonment of the sale un*486der which the claim for damages is made. The demurrer to this paragraph should have been overruled.
R. P. Davidson and L. McClurg, for appellant. H. Y. Morrison and I. N. Sims, for appellant.The judgment is reversed, with costs, and the cause remanded for further proceedings.