
    Rountree, &c. vs Hendrick’s adm’r.
    Debt, Case 59,
    Error to the Edmonson Circuit.
    
      J\.pril 13.
    
      Pleas and pleading. Obligation. Notice. Cancelment of obligation.
    
    The orise stated,
   Judge Marshall

delivered the Opinion of the Court.

This was an action of debt, brought by Hendrick’s administrator against Rountree and Crump. The introductory part of the declaration demands $1500: but the only cause of action, setup in the declaratory part, arises on a writing obligatory, alleged to have been executed by the defendants to Hendrick, (and of which proferí is made,) binding them to pay to Hendrick $800, in three years, subject however to the condition that it was not tg be paid until Hendrick either procured a relinquishment of his wife’s dower in six tracts of land, conveyed by him to Rountree, or executed to him a bond, indemnifying him against her claim of dower forever. The declaration avers that, on the-day of-Hendrick’s wife departed this life, and that Hendrick, in his life time, and the plaintiff, since his death, were released and discharged from the force and effect of this condition, and the said writing obligatory, became single and absolute, and unconditional, of which the defendants had due notice. A demurrer to this declaration was overruled, and the defendants having, thereupon, filed five pleas, the third, fourth, and fifth were adjudged bad, on demurrer — issue was joined on the first, which denied that the plaintiff was administrator, and on the second, which denied the death of Mrs. Hendrick before the suit was commenced, and a verdict and judgment were rendered for the plaintiff.

Pleas filed after demurrer to declaration overruled, waivesthe demurrer, & er» ror in. overruling it cannot be relied on here.

Variance in the amount of sum demanded in the commencemen t of declaration & that claimed in the body; thereof, not available on general demurrer.

The only objections made to the judgment, by the assignment of errors are, that the Court erred in overruling the demurrer to the declaration, and in sustaining the demurrer to the pleas, and that there were only eleven jurors. The last objection, even if true, which upon inspection of the record we are inclined to doubt, being made in this Court for the first time, cannot be regarded as a ground of reversal; andas the pleas were filed after the demurrer to the declaration was overruled, the defendants must be considered as having virtually withdrawn the demurrer, and waived any error which may have been committed in the decision upon it. Nor is there, in strictness, any assignment of error which would properly bring the question, as to the sufficiency of the declaration, before this Court. But as that was obviously the question intended to be presented by the assignment of error, in overruling the demurrer, we should, perhaps, look to the sufficiency of the declaration, not as upon demurrer, but as upon a motion in arrest of judgment. Considering the declaration under this aspect, we are of opinion that it is substantially good.

The difference between the sum demanded, as the debt sued for, and the sum shown to be due in the body of the declaration, constitutes a formal objection only, which would not be available on general demurrer. It is admitted, and properly, that the death of Mrs. Hendrick, during the life of her husband, discharged or rendered null the condition on which the payment of the money depended; and although the declaration does not explicitly state that she died before her husband, it substantially states, that by her death her husband, in his lifetime, was released from the condition, &c. and if this be true, she must have died before him. So that her death, in his life time, is necessarily and plainly implied by the statement made in the declaration; and while we are not sure that this should not be deemed sufficient, upon demurrer, we are satisfied that it is so upon a motion in arrest, after plea and verdict.

Covenant to pay $800 in 3 years, but on condition that pi’ tf. procures his wife’s relinquishment of dower to certain lands conveyed to def’t. wife dies, the covenant becomes thereby absolute, and averment of due notice thereof to def’t. & of plt’f’s release from the condition, is sufficient after verdict.

Def’t. not bound to notice an extraneous fact (not named in the obligation) whereby his conditional contract becomes absolute, noticemust be averred, 'and if denied, proved, to authorize arecovery — Plea denying such notice good bar to the action.

The averment of due notice is also sufficient, after verdict. But we are of opinion that the Court erred in sustaining the demurrer to the third and fifth pleas.

The third plea denies that the defendants haji notice of Mrs. Hendrick’s death before the commencement of this suit, which includes, of course, a denial of notice that she died in the lifetime of her husband. If this contingency had been mentioned in the writing obligatory, as one of the conditions upon which the payment of the money depended, the defendants might have been bound to take notice of it, and might 'have been liable to pay upon its happening, and to be sued for non-payment, without the necessity, on the part of the plaintiff, of either averring or proving their knowledge of the event, by a direct notice or otherwise. But as the contingency of the wife’s death, before that of her husband, was not referred to in the writing obligatory, but is wholly collateral and extraneous, the defendants were not bound to look to it or to take notice of its happening; and they cannot, as we think, be considered as becoming liable to pay, by reason of this collateral fact, or as being in default for non-payment upon its happening, unless they have knowledge of it, either actual or imputed. Not being bound to look to or notice the fact, as one affecting their obliga, tion, a knowledge of its happening cannot be imputed to them; and they could only become liable in consequence of the fact, by having actual knowledge of the fact, which actual knowledge must have existed before the^commencement of the suit, or they were not guilty of a breach of contract before that time; it may be added that the event referred to was obviously more immediately within the knowledge of Hendrick and his administrator than of the defendants. But this circumstance is not very material, for if the defendants were guilty of no breach of their contract, without actual knowledge of the death of Mrs. Hendrick, in her husband’s life time, such knowledge was a material fact, essential to the recovery in this action. The affirmance of it was, therefore, a substantial requisite of the declaration, and is a substantial ground of defence.

Plea “that before the three years mentioned in the writing obligatory sued on had elapsed, it was delivered to the def’ ts. or one of them, and cancelled,” and stating other facts which, tho’ theydonotstrictly show an accord and satisfaction, or a sufficient consideration for the surrender of the tailing, yet if it tas actually surrendered is good and the action gone.

C. S. Morehead for plaintiff-

The fifth plea, though apparently intended as a plea of award and satisfaction, substantially states, that before the three years named in the writing sued on, had elapsed, it was delivered to the defendants, or ond of them, and cancelled, and states other facts which, though they may not show strictly, an accord and satisfaction, or not show a sufficient consideration for delivering up the writing; and if, as alleged, this was, actually done, the right of action upon that writing, is certainly goile. It would seem to have been more appropriate for the defendants to have craved oyer of the writing sued on, by which, if the facts slated in their plea be true, they might have defeat-the action at once. But as the facts stated in the plea show that the plaintiff had no right to sue %at law upon the writing, when he commenced this suit,' arid could have none at any time afterwards, we think it constituted a good bar to the action, and should have been so adjudged.

Wherefore, the judgment is reversed, and the cause remanded, with directions to overrule the plaintiff’s demurrer to the third and fifth pleas, and for further proceedings. -  