
    *Daniels v. Conrad.
    April, 1833.
    (Absent Brooke, J.)
    Contract to Transfer and Deliver Title Bond — Acceptance of Order on Third Person to Deliver Bond — Effect. — Defendant agrees to assign, transfer and deliver a title bond to plaintiff; defendant gives an order on third persons reauiring them to deliver the bond to plaintiff, and containing an assignment thereof to him; and this order is given by defendant, and accepted by plaintiff, in lieu of an actual delivery of the bond: Heed, the delivery of the order was tantamount to a delivery of the bond, and a full performance of the contract on defendant’s part, whether plaintiff obtained the bond or not.
    Same — Witnesses—Examination as to Value. — The agreement to transfer the title bond, was part of the consideration given by defendant for land bought of plaintiff; Held, the value of this land is a proper subject of inquiry at the trial; and a witness, who had owned the land, having been examined by both parties as to its value, evidence offered to prove the price at which the witness had himself offered it for sale, is proper and competent.
    Assumpsit for breach of contract, by Daniels against Conrad, in the circuit court of Pendleton. There were two counts in the declaration. — The first alleged, that one Rogers contracted to sell to Conrad a parcel of land lying in the county of Nicholas, for 663 dollars, which sum Conrad paid to Rogers, and Rogers with one Skidmore his surety, thereupon, gave him a bond with condition that Rogers should within a specified time, make him a good title in fee simple, or refund the purchase money; and it being afterwards ascertained, that Rogers had no title to the land, and that it belonged of right to Daniels, Daniels sold the title, and caused it to be conveyed to Conrad, in consideration of 100 dollars paid him by Conrad, and of a promise and agreement on his part, to assign, transfer and deliver to Daniels, the title bond which had been executed by Rogers to Conrad, Rogers and his surety being at the time perfectly solvent and able to pay the amount which the bond bound them to refund; and the breach of Conrad’s promise and agreement complained of, was, that he did not, and would not, assign, transfer and deliver, the title bond to Daniels, or cause it to be done. —The second count, after stating the contract between Daniels and Conrad in the ‘same words as in the first count, stated the breach of Conrad’s promise and agreement to assign the title bond, thus -that Conrad executed and delivered to Daniels an order (to which he put his seal) on O. Phelps and A. Earle, requesting them to deliver the title bond to Daniels, and thereby also assigning the title bond itself to Daniels; and this order was presented to Phelps and Earle, but neither of them did or would deliver the title bond to Daniels, and in fact neither of them had possession of the same; of which Conrad had notice, and was requested to deliver the title bond, or cause it to be delivered, to Daniels; and if the bond had been delivered to Daniels, he could have recovered the money due thereon from Rogers and his surety; but Conrad did not, and would not, deliver the title bond to Daniels, or cause it to be done. Conrad pleaded non assumpsit, and the statute of limitations. At the trial of the issues, the plaintiff filed two bills of exceptions to opinions of the court.
    1. Erom the first of them, it appeared that it was proved, that the land sold by Daniels to Conrad, had originally belonged to the father of Daniels, who in truth had made the arrangement with Conrad for the sale of it to him, but before the bargain was executed, had given and transferred the benefit thereof (as an advancement) to his son the plaintiff, between whom and Conrad the bargain was finally completed; and the father having been introduced by the plaintiff as a witness on his behalf, to prove the circumstances and manner of the transaction, was examined, both by the plaintiff’s and the defendant’s counsel, as to the real value of the land which was the subject of the contract, at the time of the sale to Conrad; and in the cross examination, he was asked by the defendant’s counsel, whether he had not, before the sale of the land to the defendant, offered to sell it to one Crouch for less than 400 dollars? to which he answered, that he had not as well as he remembered, but that if he had, it was for very little less than 400 dollars. Afterwards, in the progress of the trial, the defendant’s counsel called Crouch as a witness, and asked him, whether *the first witness (the plaintiff’s father) had not offered to sell the land to him before the sale made to Conrad, and if so, at what price? The plaintiff’s counsel objected to the inquiry, that it related to collateral matter, which had been brought into the cause by the defendant’s counsel himself in his cross examination of the first witness, and that it was not competent to the defendant to controvert it. But the court, thinking that the answer to the inquiry might be proper testimony to be weighed by the jury, in estimating the degree of credit that ought to be given to the testimony of the first witness, overruled the objection, and directed the witness Crouch to answer the question ; to which opinion the plaintiff’s counsel excepted.
    2. It appeared, that upon the contract between Daniels and Conrad being concluded, Conrad gave Daniels an order on Phelps and Earle for the title bond, dated March 6, 1820, and signed and sealed by Conrad in these words — “To O. Phelps and A. Earle — You will please deliver to J. Daniels Tthe plaintiff] the title bond I hold of C. Rogers and A. Skidmore, for I hereby assign the same to Daniels for value received (Ñ. B. without recourse).” On this order there was this indorsement — “There is no such bond in my hands; (signed) A. Earle.” And the court, on the motion of the defendant’s counsel, instructed the jury, that if they should find from the testimony, that the above order was executed and delivered by Conrad to Daniels, and accepted by Daniels, in place of the actual delivery into his hands of the title bond therein mentioned, they must find a verdict for the defendant; to which opinion of the court the plaintiff’s counsel excepted.
    There was a verdict and judgment for the defendant; from which the plaintiff appealed to this court.
    Johnson, for the appellant,
    argued, 1st, That the whole inquiry as to the value of the land, and much more the special inquiry propounded by the defendant’s counsel on his cross examination of the plaintiff’s witness, were collateral *to the issue: that it was obvious, the inquiry as to the value of the land could only have been gone into, to ascertain the measure of damages; but, in that view, the value of the title bond which Conrad undertook to assign to Daniels for the land, not the estimated value of the land, was the point in issue : that the inquiry propounded io the witness, as to the price for which he had offered to sell the land, was collateral again to the inquiry as to the value of the land, which was itself collateral to the issue ; and the question was only intended to-lay a foundation for impeaching the credit of the witness. Row, he said, it was a settled rule, that a witness is not to be cross, examined as to a distinct collateral fact, for the purpose of afterwards impeaching his credit; and if a witness answers such a. question, evidence cannot afterwards be admitted to contradict his testimony on such collateral matter. Stark. Law Ev. part 2, l 22, vol. 1, p. 134. 1 Phil. Law Ev. ch. 8, p. [227.] 2ndly, He said the instruction given by the court to the jury was erroneous. Here was no demurrer to the evidence, and no statement of the evidence, from which the whole case could be ascertained. The court directed the jury, that if they should find a single fact, namely, that Contad’s order on Phelps and Earle for the title bond, had been given by him, and accepted by Daniels, in place of the actual delivery of the bond, — they must find for the defendant. To justify such an instruction, it must appear from the pleadings, that that fact was conclusive of the point in issue ; but there was no issue made up on the point. Eor aught that appeared, it might have been in proof, that Conrad when he gave the order on Phelps and Earle, knew that neither had possession of it; nay, that he had it in his own possession; that he had afterwards assigned it away, and delivered it to another person: in such case, it could hardly be contended, that his fraudulent imposition of a nugatory order for the bond 1 on Daniels, in place of the actual delivery thereof to *him, would exempt him from the duty to assign, transfer and deliver the bond.
    Daniel, for the. appellee,
    said, the conduct of both parties at the trial, shewed that the value of the land was material to the issue; for the plaintiff and defendant' both, had gone into that inquiry: and then the defendant asked a question, the object of which was to ascertain at what price the land had been offered for salé; an inquiry of all others, the best calculated to ascertain its real value; so that if a false answer was given by the witness to this question, it was strictly proper to offer evidence to contradict him, and thus to impeach his credit. As to the other point, he said, the precise point in issue was, whether Conrad had, according to his promise, assigned, transferred and delivered the title bond to Daniels. The order drawn by .Conrad on Phelps and Earle, was an absolute deed of assignment of the title bond to Daniels; and the instruction was no more than this, that the delivery and acceptance of the order for the bond, was tantamount to the actual delivery of the bond itself, if both parties agreed and intended that it should be so. Daniels, it appeared, presented the order to Earle, who said he had no such bond in his possession ; but it did not appear that he ever applied to Phelps, or that if application had been made to him, the order would have been ineffectual to procure the bond.
    
      
      Contracts, — See monographic note on “Contracts” appended to Enders v. The Board of Public Works, 1 Gratt. 364.
    
    
      
      IngTaIiain’s edi. Boston 1828.
    
    
      
      American edi. New York 1820.
    
   TUCKER, P.

Without impugning the principles laid down by Starkie and Philips, in the passages cited by the appellants’ counsel, I am of opinion, that there was no error in the admission of the testimony set forth in the first bill of exceptions. The value of the land was certainly material to the issue. The evidence of the witness as to the value, was, of course, directly applicable to the issue, and every fact going to disprove his valuation was, in like manner, material or applicable. Por what goes to disprove evidence that is directly applicable, must be itself directly applicable. It cannot be deemed collateral only. Thus, it cannot be ^denied, that if, in detinue, a witness swears that the value of a horse is 100 dollars, evidence would be admissible to prove that he had sworn, upon a formal trial, that he was worth only SO dollars. And if such evidence as this would be within the issue, and not collateral but direct, evidence of his declarations not on oath, though less strong, would certainly not be less direct. In like manner, though evidence that he had offered the same horse for the price of SO dollars, might not be as strong as the evidence of his declarations, because he might be asking a lower price than he really thought the property worth, yet certainly it cannot be fairly affirmed to be less direct. I think, therefore it was proper to permit evidence to contradict the , testimony of the witness as to the price at which he had offered the land.

The question presented by the second bill of exceptions is more difficult. The first .count in the declaration goes distinctly enough for the failure to deliver the bond according to contract. Now, I think, there can be no question, that as to this count, the evidence was conclusive against the plaintiff. Por, certainly, if the defendant did draw and deliver the order to the plaintiff, and the plaintiff did accept the same in the place of actual “delivery into his hands, of the title bond itself, it was a sufficient fulfilment of the contract to deliver, and a discharge of the defendant in this action. The original contract to deliver was satisfied and at an end, whatever other rights might have become vested in the plaintiff by the act done in satisfaction.

What then was the effect' of that act? what rights did it confer on the plaintiff? 1. By the delivery of the order, and its acceptance in the place of the actual delivery of the bond, the title to the bond absolutely passed. Pleasants v. Pendleton, 6 Rand. 473. If it had been afterwards burnt, lost or destroyed, the loss would have been Daniels’s, not Conrad’s. 2. By that delivery and passing of title, the property in the bond itself so passed, that if Phelps or Earle had it in their possession, trover or detinue would have lain for it, whether they accepted the order or not. And if they *had it not, those actions might have been sustained by the plaintiff against any person in whose possession it might happen to be, even the defendant himself. And if it was found not to be in Phelps’s or Earle’s hands, whose concern was it to search for it, after the plaintiff had received the order as an actual delivery into his hands of the bond itself? It was, surely, the plaintiff’s concern. The defendant was not only not bound to search or sue for it, as he had discharged himself from all further connexion with it, but he had no right to sue for it. He could neither have brought trover nor detinue, nor even a bill of discovery against Phelps or Earle, or any other person. The delivery had passed away the property, and left him powerless over the subject. 3. The right of property in the subject, would have enabled Daniels to sue the oblig'ors at law' or in equity on the lost bond, and establish it by the evidence of the defendant himself. Or he might have sued Phelps and Earle, and called upon the defendant to prove their possession ; or he might have brought them all into equity, on the ground that the money was due to him, and demanded, that the obligors should pay it to him accord-inglj'; that Phelps and Earle should give it up, or account for it; or that the defendant, should surrender it if he had it, or pay him the amount of it, if there had been in fact no such bond as he represented. And 4. In like manner, he might at law have sued the defendant in detinue or trover, if the defendant had the bond, or he might sue him in an action for deceit, or even in as-sumpsit, if he had pretended to sell him a bond, which had no existence. These remedies are still open to him if he is injured. But I do not think he could sue him in assumpsit, after receiving this order as a full compliance with the contract to deliver the bond; and therefore the proof of that fact was a complete bar of his action.

I am therefore of opinion, that there is no error in the judgment.

The other judges concurred. Judgment

affirmed.  