
    Benjamin Williams vs. Sarah Jones.
    Where the maker of a promissory note has a good defence at law, such as failure of consideration or payment, and fails to avail himself of it there, he cannot afterwards come into a court of equity for relief, without showing substantial reasons for not having made the defence at law.
    Therefore, where W. being sued at law on a note in favor of J., payable at a particular time, allowed judgment to go against him at law, and subsequently filed a bill in equity against J., alleging that the note was given for a tract of land bought of J.; which tract had been appraised for the purpose of procuring stock in the Mississippi Union Bank, and that the terms of the contract of sale were, that the purchase-money was to be paid to 'W. out of the proceeds of the certificates of stock when discounted and in Union Bank money; and W. exhibited with his bill a contract to that effect between himself and J.; it was held, that W. had a complete defence which he should have made at law; J. having denied the contract of sale in her answer, as set up by W. and sworn that she had been deceived and imposed on by W. in the execution of said contract, as no such conditions were read to her in the contract, and her answer being sustained by the proof; it was held, further, that the chancery court could have properly rendered no other decree than the dismissal of W’s. bill.
    In an action on a note given for land, where a bond for title has been given by the payee of the note, it is competent to introduce the bond in evidence to explain the note.
    Appeal from the vice-chancery court, at Carrollton; Hon. Henry Dickinson, vice-chancellor.
    Benjamin Williams alleges in his bill, that in the year 1839 he purchased of Sarah Jones a certain tract of land, which had been appraised for the purpose of taking stock in the Mississippi Union Bank, and the stock had been subscribed for; that Sarah Jones sold him the land and transferred him the stock, for which he was to pay her sixteen hundred dollars in the notes of the Mississippi Union Bank, which sum was not to be paid until the stock was declared, and until the stockholders drew the amount allowed on stock, as provided in the charter of said bank; and that she gave her bond to make title to the land and transfer the stock, in the penalty of four thousand dollars. This bond he exhibited with his bill; it recites the contract of sale substantially as stated in the bill.
    He further states, that when he made this contract he executed his note for the sixteen hundred dollars, payable on the first day of January, 1840, the bond having been made and the note dated the 29th of April, 1839 ; that the note was in the ordinary form of a promissory note, was drawn by a lawyer of eminence, who assured him it was all right to draw it in that form.
    That on the 23d of September, 1839, at the request bf said Jones, he paid the sheriff of the county the sum of five hundred and seventy-two dollars and twenty-seven and a half cents to he credited on this note; and on the 4th of March, 1840, he paid her one hundred dollars more; and for these sums he exhibited receipts with his hill, and when the note matured he tendered to Jones the full ^amount in notes of the bank, which were refused, and Jones sued him at law on the note, and recovered judgment for $1416.05 on the 15th of November, 1843; that he set out this defence by plea in the court of law, but his plea was demurred t.o, the demurrer sustained, and he was advised that in equity was his only relief.
    That Jones had no property sufficient to compensate him in damages; that she had not made title to the land; and had not and could not transfer the stock, because no stock was ever perfected in the bank.
    her
    The bond exhibited with the bill was signed “ Sarah X Jones,”
    and tested by “A. R. Herron and Stephen Hartgrove.”
    Sarah Jones answered the bill, stating that she could not read, and did not therefore know whether the bond exhibited with the bill was the one she signed or not; she believes it was not, as there was no provision in the bond she signed that the money was not to be paid until the stock was taken and allowed in the bank; nor was there any provision that the note was to be paid in the notes of the Mississippi Union Bank, and if the bond exhibited with the bill was the one she signed, the complainant had fraudulently taken advantage of her inability to read, to insert such provisions in the bond, not in their contract, and never ratified by her.
    A. R. Herron testified that his recollection was very indistinct with reference to the matter; but according to the best of his recollection such an agreement as the one set forth in the bond was signed by Sarah Jones, and he believes that to be the agreement which she signed, and he thinks it was read to her before she signed it; the papers were signed in his office, but the contract of purchase was made before they came there.
    Stephen Hartgrove proved that he was present when the contract of sale was concluded between Williams and Mrs. Jones; that not a word was said about Union money or the stock in the Union Rank; it was a sale of the land for sixteen hundred dollars, every dollar of which Williams said he would pay before maturity; Williams, on the day the bond and note were signed, did not read over the bond to Mrs. Jones; previously Williams had read to Mrs. Jones, at her house, a bond for title in the ordinary form to the land which he had been called on to hear, as Mrs. Jones could not read, and nothing was then said in the bond about Union money or stock in the bank; the witness was present during all their negotiations, and never heard a word on the subject; and the day the bond was signed and witnessed it was read over by none of the parties ; it was handed by Williams to Mr. Herron, the lawyer, who read it over and said it was a valid bond, upon which Mrs. Jones signed it, and the witness and Herron attested it; Williams then executed the note which Herron wrote, without demur or hesitation, and never once pretended it was payable in Union Bank money.
    This was the substance of his deposition. The vice-chancellor dismissed the bill, and Williams appealed.
    
      William and William G. Thompson, for appellant,
    contended that defendant admits that she has not conveyed the land to complainant, nor transferred the stock to him. There is no proof that complainant took possession of the land. We contend that here was a failure of consideration, and that defendant should refund to complainant the amount admitted in the answer to have been paid by him before judgment recovered on the note.
    Acee, for appellant,
    insisted,
    1. That by the contract of Williams he was to pay the money at a particular day, and that day had passed, and he showed no reason why he should be excused from the performance of his contract. He cited Shubriclc v. Salmond, 3 Burr. 1637; 8 T. R. 267; Aleyn’s R. 27; Parker v. Hodgson, M. & S. 267.
    
      2. If the appellant had any remedy, it was at law, and he should have made his defence in the circuit court. Nevitt v. Gillespie, 1 How. R. 108; Thomas v. Phillips, 4 S. & M. 358; Houston v. Royston, 1 S. & M. 238.
    3. The appellant asks that the contract for the sale of land should be rescinded. To enable a party to have a contract rescinded, he must make out a clear and undoubted case. Ayres v. Mitchell, 3 S. & M. 683; Stockton v. George, 7 How. R. 172.
    4. When contracts of doubtful import are susceptible of a legal interpretation by which they can be enforced, such interpretation must prevail. Riley's Adm'rs. v. Vanhouten, 4 How. R. 428.
   Mr. Justice ThacheR

delivered the opinion of the court.

Williams filed his bill in the district chancery court. He charged, that in 1839 he contracted with Sarah Jones for the purchase of a tract of land, which had been appraised for the purpose of procuring stock in the Mississippi Union Bank. He charged, that the terms of the contract were, that Jones was to transfer to him the stock procured upon the land, and the purchase-money to be paid in the bills of the Union Bank, and not until the bank had discounted money upon the stock certificate. Williams gave his promissory note for the purchase-money, payable at a particular time, and not specifying that it was payable in any particular funds. He exhibited a bond purporting to have been executed by Jones, at the time of the contract, which, in its conditions, sets out the terms of the contract as alleged by Williams. The answer of the defendant denies that the payment of the purchase-money was to have been made in the bills of the Union Bank, ánd charges that as to the bond an imposition was practised upon her from her ignorance in not being able to read or write, and that no such conditions were contained in the bond read to and executed by her at the time of the contract. Suit was instituted upon the promissory note, and judgment recovered at law.

The statement, on the part of Williams, of the character of the contract, shows that a perfect defence could have been made at law in the action on the promissory note, both as to the failure of its consideration, and the payments claimed to have been made upon it. It was competent to have introduced the bond to explain the note, it having been executed at the time the note was made, and constituting a part of the evidence of the contract. The payments, if made and well pleaded, formed a further defence. A successful defence to the whole note would have worked a virtual rescission of the contract.

But as the proceedings stand in the chancery court, no other decree could have well been made. The only witness who speaks confidently in giving his testimony is Stephen Hart-grove. He was present during the making of the contract, and he confirms the answer of the defendant in all material parts.

Decree affirmed.  