
    Clark and Another v. Harrison.
    Suit by the assignee of the payee of a sealed note payable one year after date, against Clark and C. M’Clure, the makers. Plea, that the consideration of the note was the payee’s verbal contract to convey to Clark certain real estate; that the payee refused to convey the same, and also refused to reduce the contract to writing. The replication to this plea states, that on the payee and Clark’s building a steam-mill in a certain town according to contract, the proprietors of the town were to convey to them certain real estate; and that the note was given for the payee’s share of that property, which he was to convey to Clark as soon as they procured the title. It does not deny but that the payee’s contract to convey was verbal. It states that Clark agreed with the payee to fulfil with him their contract to build the mill; that the payee afterwards, with Clark’s consent, entered into a covenant with C. M’Clure and one ¿I. M’Clure, by which they, for a valuable consideration paid'to G. M’Clure by the payee, agreed that C. M’Clure should perform the payee’s part of the contract to build the mill; that Clark and C. M’Clure had failed to build the mill, neither of them having performed his part of the work; and that the payee’s contract to convey, &e., named in the replication, is the same with that mentioned in the plea; without this, that the payee agreed verbally with Clark to convey to him, &c. Held, on general demurrer, that the replication was bad, and the plea good.
    To a suit on a sealed note, the defendant may plead in general terms, that the note was executed without any good and valuable consideration.
    
      Saturday, May 30.
    ERROR to the La Porte Circuit Court.
   Dewey, J.

Harrison, as the assignee of 'Wyatt, sued Clark and C. M'Clure on a sealed note for 1,500 dollars payable in one year from date. The defendants pleaded three pleas.

The second plea sets forth that, at the time of making the note, Wyatt, the payee, and Clark had agreed with the proprietors of a town, called Indiana City, to build a steam-mill therein, and that the proprietors, in consideration thereof, had covenanted with them to convey to them twenty-four lots of ground, upon one of which the mill was to be erected; that afterwards, when the note was executed, ' Wyatt and Clark agreed verbally, that the former should convey to the latter his share of said lots, (being one-half,) excepting that on which the mill should stand, in consideration of which verbal agreement Clark, with C. McClure, as his surety, executed the note to Wyatt; and that Wyatt had neglected and refused to convey to Clark the lots so contracted to be conveyed to him, and had also refused to reduce the contract to convey to writing.

The plaintiff replied that, at the time of making the contract between Wyatt and Clark mentioned in the plea, and when the note was executed, they, Wyatt and Clark, were bound by a covenant with the proprietors of Indiana City to build a steam-mill in that town; that the proprietors, in consideration of the erection of the mill, had agreed to convey to Wyatt and Clark twenty-four lots when the mill should be completed; that Clark purchased of Wyatt his interest in that contract at the price of 1,500 dollars, for which the note was executed; that Clark agreed to take a conveyance from Wyatt of his share of the lots so soon as Wyatt and Clark should procure a title from the proprietors of the town; that Clark, at the same time, agreed with Wyatt to fulfil with him their contract with the proprietors to erect the mill; that after the sale by Wyatt of his share of the lots to Clark, the former, with the knowledge and consent of the latter, entered into a covenant with C. M'Clure and one A. M'Clure, by which they, in consideration of 1,800 dollars paid down to C. M'Clure, and of 1200 dollars more to be paid to him by Wyatt when demanded, agreed that C. M'Clure should perform Wyatt's part of the contract, which he and Clark had made with the proprietors to build the mill; that Wyatt paid all the money to C. M'Clure according to his agreement; that Clark and C. M'Clure had failed to build the mill agreeably to the contract of Wyatt and Clark with the proprietors — neither of them having performed his part of the work; and.that the contract between Wyatt and Clark, for the sale by the former of his share of the lots to the latter, set out in the replication, is the same agreement mentioned in the plea and none other; without this, that the said Wyatt agreed verbally with Clark to convey to him Wyatt's share of the twenty-four lots, excepting the lot on which the mill was to be situated, as mentioned in the plea.

The defendant put in a general demurrer to the replication, which was overruled. This is one of the errors assigned, and, we think, well assigned.

The replication commences by admitting the existence of the verbal contract alleged in the plea as the consideration of the note, and concludes by a traverse of that very agreement. This is such a repugnance in the averment of material matter as vitiates pleading upon general demurrer. Gould’s PI. 155.

But independently of this technical defect, which evidently happened through inadvertence, the replication is insufficient. The defence set up by the plea is, that the consideration of the note was a verbal contract by Wyatt to convey to Clark certain real property, which he had refused to convey, and that he had also refused to reduce the contract to writing. This statement shows that the note was given without any valid consideration, which under our statute is a good defence. R. S. 1838, p. 451. There was no mutuality in the agreement, as Clark could not compel its performance by Wyatt. It is void under the statute of frauds, and is such a contract as Clark had a right to treat as a nullity under the circumstances of the case. This principle was settled by this Court in the case of Johnson v. Moore, 1 Blackf. 253. The replication does not deny that the consideration of the note was a verbal contract to convey real property, but alleges that the terms of the contract were somewhat different from the terms of that set put in the plea, and attempts to show an excuse on the part of Wyatt for not complying with them. This difference is a matter of no consequence, as the contract, in either form, was not binding upon Wyatt under the statute of frauds. Nor, had the contract been valid, has the plaintiff, in our opinion, succeeded in establishing Wyatt's justification for not complying with it. The object of the replication is to show that Clark exonerated Wyatt from performing, or causing to be performed, his part of the contract made by him and Clark with the proprietors of Indiana City to build the mill — on the completion of which depended Wyatt's ability to convey to Clark the property for which the note was given. This object has failed. The consent of Clark, that Wyatt should contract with the M'Clures that C. M'Clure should do what Wyatt was bound to do, in conjunction with Clark, by the contract with the proprietors of the town, does not amount to an assumption by Clark of the risk of C. M'Clure's failure to comply with the contract with Wyatt to do his part of the building the mill. Clark has no remedy against the M'Clures for such a failure, but Wyatt has. He can sue on his with the M'Clures, and to that he must look for redress. C. M'Clure's failure, in contemplation of law, was the failure of Wyatt himself; and as the replication alleges that C. M' Clure and Clark were equally in default in that matter, there is no reason to impute to Clark, more than to Wyatt, the non-performance of the condition on which depended both their right to a title to the property out of which this controversy has arisen, and Wyatt's ability to convey to Clark.

The third plea alleges, that the note mentioned in the declaration was executed by Clark and C. M'Clure “ without any good and valuable consideration whatever.” The plaintiff demurred generally to this plea, and the demurrer was sustained. This is also error. With regard to this general form of a plea denying the existence of a consideration for a specialty, this Court 'has expressed an opinion, heretofore, that it is well enough. Huston v. Williams, 3 Blackf. 170.—Kernodle v. Hunt, 4 Blackf. 57. We are aware that this opinion is not in- accordance with one or two English decisions, but we perceive no good reason to change it.

There is another plea in this case — the first in order in the record — to which there is a replication, followed by a rejoinder forming an issue as to a single fact, namely, as to what was the consideration of the note? Verdict and judgment for the plaintiff for the amount of the note. The record also contains the evidence, and some instructions by the Court to the jury, and shows that a motion for a new trial was overruled. It is unnecessary to inquire whether these instructions were right, or whether the verdict was warranted by the evidence, because, admitting both to be correct, (an admission which could not be made were the inquiry essential,) the verdict cannot stand. The second and third pleas are good bars;- and the law is, that when one or more pleas are held sufficient on demurrer, judgment must be for the defendant, though the plaintiff may have obtained a verdict on an issue of fact formed upon another plea, 2 Burr. 753. — 1 Saund. 80, n. 1.

J. B. Niles, for the plaintiffs.

C. Fletcher and 0. Butler, for the defendant.

Per Curiam.

The judgment is reversed, and the verdict, replication to the second plea, Sec., and the proceedings under the third plea subsequent to the joinder in demurrer, set aside, with costs. Cause remanded, Sec.  