
    John M. Ellis vs. William McD. Martin, use of Stephen Johnson.
    A plea averring that the note sued on was part of the price of a lot previously purchased by the defendant of the plaintiff, upon a certain condition ; that the plaintiff falsely and fraudulently represented the condition had been complied with; that the defendant, confiding in such representation, had executed the note ; that the representation was false, the condition had not been complied with —and so the consideration had failed —is not double nor multifarious —but is a good plea in bar.
    If the defendant’s first special plea be decided bad on demurrer, and under a judgment of respondeat ouster he files other pleas, which are also on demurrer, held to be bad — he may still, in this court, assign for error the judgment of the court below in sustaining the demurrer to his first special plea.
    This was an action of assumpsit brought to the April term, 1840, of the circuit court of Holmes county,- by William Me D. Martin for the use of Stephen Johnson, against John M. Ellis, on a promissory note, payable to “ William McD. Martin, President of the Board of Trustees of the town of Emory.” The defendant pleaded two pleas — the general issue, and a special plea in these words — “ And the said defendant, by his attorney, comes and defends the wrong and injury when, &c. And for further plea says, actio non, because he says that the note sued upon and set forth in the plaintiff’s declaration, was made and executed as part of the price of a lot of ground in the town of Emory; and the said defendant avers that before the making of said note he agreed to purchase said lot at the price of $270, upon condition the Methodist Conference, then about tube holden in the town of Grenada, would build a college at the- said town of Emory. And the said defendant avers that at the time he made and executed said note, the said plaintiff falsely and fraudulently represented that'said Conference had determined to and would build a College at said town of Emory. And the defendant avers that, confiding in said representations, he consummated said purchase, and executed the note in plaintiff’s declaration mentioned. And the said defendant avers that the said Methodist Conference had not determined to build said college, but have wholly failed and refused to do so. So that in fact, the whple consideration upon which said note was made has failed. All which he is ready to verify, &c.” On the first plea, the plaintiff took issue — and demurred specially to the second. The court sustained the demurrer, and gave judgment of respon-deat ouster. The defendant then filed three additional pleas, which were in substance— 1st, That he was induced to execute the note sued on, by the falsehood and fraud of the plaintiff, Johnson, without any good or valid consideration. 2d, That the note was made and executed without any good or valid consideration in law. And 3d, That the consideration upon which the note was made had wholly failed. To all three the plaintiff again demurred, and his demurrer was sustained by the court. The case was then tried on the general issue, when the plaintiff read to the jury the note sued on, and rested his case. The defendant then introduced Simon F. Lane, who testified that the note sued on was given as part of the price of a lot in the town of Emory; that at the time the note was executed, he was Treasurer of the Board of Trustees of said town, and the note was delivered to him as treasurer; that no note or memorandum in writing, as far as he knew, had been made by said trustees, by which they were bound at any ■ time, or upon any terms, to convey said lot to the defendant. Upon cross-examination, the witness stated that the lot had been previously sold to one Miller, and that the Board of Trustees, by a resolution, he believed, had agreed-to substitute the defendant for Miller, as the purchaser, and that the trustees had entered a resolution on their books to convey the lot when the purchase money was paid. The witness further stated that he believed the trustees had executed some title bonds, but he knew of none to the defendant. This being all the evidence offered, the defendant’s counsel asked the' court to instruct the jury, “that if they believe, from the evidence, the note sued upon was given for the purchase of a lot of land, and that the terms of said sale and purchase were not reduced to writing and signed by the vendor, or some one lawfully authorized by him to do so, they must find for the defendant.” The court refused to give the instruction, and the defendant excepted. The defendant moved for a new trial; his motion was overruled by the court, and he now'brings the case up by writ of error, and assigns for error the several decisions of the court below, sustaining the demurrers to his pleas, and the refusal to give the instruction to the jury asked for by him.
    
      Mr. Lansdale for the plaintiff in error.
    It is contended by the plaintiff in error, that the court erred in sustaining the demurrer to the first special plea, and also to the three pleas subsequently filed, as well as in refusing to instruct the jury, as asked by the defendant in the court below.
    The first special plea alleges that the plaintiff'in error was induced to purchase a lot of ground from the defendant in error, by his falsely and fraudulently representing to him a fact, without which said lot would have been worth nothing, which is admitted by the demurrer. It cannot be necessary to cite authority upon this point. That the other pleas are good, see 1 Marshall, 10 7.
    
    The statute of frauds and perjuries is also a good defence to the action, at any rate, unless the plaintiffs below had shown that they were ready and willing to convey the land, upon payment of the purchase money. See 3 Marshall, 298, and 4 Lit-tell, 242. In this case the proof is, that the very person to whom the note was delivered upon its execution, and who was the treasurer of the board of trustees, knows nothing of any writing of any kind, by which the vendors could be bound at any time to convey the lot.
    . The weight of evidence, however, was not left to the jury. They were, by the refusal of the court to give the instructions asked for by the plaintiff in error, instructed to disregard the evidence. A reversal of the cause is respectfully asked.
    Brooke, for the defendant in error.
    The first error complained of by the plaintiff in error, is the sustaining, the demurrer to his first special plea.
    This plea is manifestly bad, for the following reasons: 1. Duplicity. It. states the consideration of the note sued on,’ to have been a lot in the town of Emory — and then to have been the building of a Methodist college in said town of Emory — whieh last consideration is stated to have failed. This last fact is.not pleaded in such a way as to make it an inducement,to the other, and to compose together with it an entire defence. For observe the conclusion of the plea — “ that the said Methodist conference had not determined to build said college, but have wholly failed, and refused so to do, so that in fact the whole consideration upon which said note was made, has failed.” The gravamen of the charge here rests entirely upon the refusal of the Methodist conference to build, &c. But what has become of the lot ? The existence of this certainly is not made to depend upon the building of the college. And yet this is stated in the plea to have been the consideration of the note.
    2. The plea presents no single- issue. Suppose issue were taken, what would it be? That the note was given for a town lot? or that the plaintiff had falsely and fraudulently promised that the conference would build a college in Emory ? or that they intended to build one there ? Each of these facts are issuable, and, if properly pleaded, might each forni subject matter of defence.
    The second error complained of, is the sustaining of the demurrer to the second set of pleas, filed in obedience to the judgment of respondeat ouster.
    
    The first of said pleas, is also manifestly bad, in being too general. The particular circumstances of the fraud should be set forth. No notice of the facts relied on for defence are given by said plea. See 2 Saund. PL <fc Ev. 25-6. 9 Go. 110; it amounts to the general issue.
    The second and .third of said pleas amount only to the general issue. The second plea does not, as a special plea, confess and avoid the averments in the declaration. A consideration is alleged in the note and declaration, and said plea denies it. This cannot be done in a special plea. The third plea states no facts, showing how the consideration has failed. This should be stated, in. order to. give the opposite party an opportunity of controverting them.
    
      Even were the facts as set forth in the special plea first filed, and which it is presumed were intended to be offered in evidence under the second set, it is questionable whether they would form a defence in a court of law. See 1 Littell, 178. 4 Howard, 453. 3 Marshall, 526. 2 Wheat. 13.
    The last error complained of, is the refusal of the court to give the instructions asked for by the defendant below.
    Whether or not the proposition contained in the instruction asked for is true as a legal principle, is not the question the court is called on to decide. If true, could it have applied, under the evidence contained in the bill of exceptions'? Is it proven, or could it be reasonably inferred, that there was no note.or memorandum in writing, of the sale of the lot? The witness states that he did not know of any, but, on cross-examination, stated that said lot had been previously sold to one Miller, and that by resolution of the board of trustees the defendant below had been substituted in Miller’s place, and that said trustees had entered up a resolution on their books to convey said lot when the purchase money was paid. The witness also stated that the trustees had, as he believed, executed some title bonds, but that he did not know whether one for this particular lot had been made. Now, it might well be contended that the entry on their books of the resolution to convey said lot, was a sufficient note or memorandum in writing. Such have been the decisions in regard to the entries on the books of auctioneers. There was nothing then before the jury to show that a note, or memorandum, in writing, for the sale of the lot had not been made. On the contrary, both proof and presumption were the other way. The court therefore properly refused the instruction, as being inapplicable to the case presented.
   Mr. Justice Clayton

delivered the opinion of the court.

This case turns entirely upon the pleadings. The action is assumpsit; first plea the general issue; and next a special plea of failure of consideration. To this last plea there was a demurrer,' assigning various objections, which was sustained. Several other special pleas were then filed, which, upon demurrer, were ruled to be bad; and a verdict and judgment for the plaintifF.

The first special plea avers that the note was executed as part of the price of a lot in the town of Emory, which the defendant had previously purchased, upon' condition that the Northern Conference, then about to be holden in the town of Grenada, would build a college at said town of Emory, and that the plaintiff falsely and fraudulently represented that said conference had determined to, and would build a college at said town, and that, confiding in said representation, he executed said note; that said representation was false; that said conference had not resolved to build a college at said place, but had refused so to do, and so the consideration had failed.

It is objected that this plea is double and multifarious. It is true that it comprehends various circumstances, but they are all stated by way of inducement, and tend to one common point. The language and structure might have been more precise and technical; yet it sets forth the defence with reasonable certainty. The issue tendered is a single one; that the defendant had purchased the lot upon a condition which had not been complied with, and that he had been induced to execute the note upon a false representation of the plaintiff, that the condition had been complied with, and so the consideration had failed. A replication might have been easily drawn, which would have taken issue on a single point; either that the sale was unconditional, or that he had not made the representation averred, or that the representation was true. Upon the determination of such issue, the judgment could have been rendered according to the verdict. We think there was error in sustaining the demurrer to this plea, and that it should have been overruled.

The subsequent pleas which were filed, were bad. Yet, according to the decision in Willis & Conley v. Ives, made by this court at its last sitting, the error in deciding the demurrer to the first special plea, may still be corrected.

The judgment is therefore reversed, the demurrer to the first' special plea is overruled, and a new trial granted.  