Headley v. Shaw

1. Variance—in ike name. Where the declaration described the note sued on as made by " Samuel Headley,” and the note offered in evidence was signed “Samuel Headley, Jr.;” held, that this was no variance. “Jr.,” added to a person’s name, is no part of the name. 3. Dependent and independent conditions. A vendor of land covenanted that upon the express condition (being a condition precedent and time being of the essence of said condition) that the vendee would perform his covenants, he would execute and deliver to the latter a quitclaim deed for the land. The covenants of the vendee were that he would pay $143.50 on the first day of January, 1861, and the same amount on the first day of January, 1863, for which sums he gave his two promissory notes, and that he would pay all the taxes on the land from January, 1859jt the contract being dated in June, 1859. It was held, the payment of the last note and the making of the deed, were dependent and concurrent acts; the payment of the taxes was unimportant, and a matter in which the vendor had no concern, as he was to give only a quitclaim deed with no covenant against liens for taxes. 3. And in a suit upon both notes, it was held a good defense against a recovery upon the last note, that no deed had been made or tendered; and it is not essential to the validity of such a defense that the first note should have been paid. 4. The obligations to pay the last note and to make the deed, being mutual and concurrent, the party who insists upon a performance from the other side must show a performance or an offer to perform on his own part. 5. Vendor and purchaser—which must prepare the deed. A party contracting to execute and deliver a deed, is bound to prepare the deed, if there be no agreement that it shall be prepared by the other party.

• Writ of Error to the Circuit Court of Fulton county; the Hon. C. L. Htgbee, Judge, presiding. This was an action of assumpsit brought by Southworth Shaw against Samuel Headley, to the September Term 1863, of the Fulton Circuit Court. The declaration contained two special counts and the common counts. The first count declared upon a note to Shaw, the plaintiff, dated 16th June, 1859, for $143.50, payable on the 1st day of January, 1861, and recited that “ by which said note the said defendant, by the name, style and description of ‘ Samuel Headley,’ promised to pay,” etc. The second count was upon another note to Shaw, of the same date as the first named, and for the same amount, but payable on the 1st of January, 1862. To the whole declaration the defendant pleaded the general issue, and to the second count he pleaded a special plea as follows: “And, for a further plea in this behalf, said defendant, by leave of the court first had and obtained, as to the second count in said declaration mentioned, says actio non, etc., because he says that the said promissory note in said count mentioned was given for and in consideration of a contract for the sale of land, executed and delivered at the same time as the said note, and being part of the same transaction, the said promissory note being for the moneys last due and payable under and by virtue of said contract, to wit: (the $143.50, payable January 1st, 1862, with the interest thereon), and which said contract is substantially in the words and figures following, to wit: “ This agreement, made this sixteenth day of June, in the year of our Lord one thousand eight hundred and fifty-nine, between Abijah Fisher, D. H. FTevins, FT. T. Carryl, Daniel Low and Southworth Shaw, of the first part, and Samuel Headley, Jr., of the county of Fulton and State of Illinois, of the second part, witnesseth: That the said parties of the first part, for and in consideration of the sum of one dollar, part of the purchase-money hereinafter mentioned, now actually paid in, and upon the express condition (being a condition precedent, and time being of the essence of said condition), that the said party of the second part, his heirs, executors, administrators or assigns, shall and do well and faithfully perform the covenants hereinafter mentioned, on the part of the said party of the second part,- to-be kept and performed, do hereby, for themselves, the survivor and survivors of them, their successors and assigns, covenant, promise and agree to execute and deliver to the said party of the second part, his heirs or assigns, a deed of quitclaim of and for that certain -piece or parcel of land situate, lying and being in the county of Fulton and State of Illinois, in the tract appropriated by acts of congress for military bounties, known and described as follows, to wit: The north-west quarter of section thirty-six of township seven north, in range two east (N. W. 36, 7 N. 2 E.), and the said party of the second part doth hereby, for himself, his heirs, executors, administrators and assigns, covenant, promise and agree, to and with the parties of the first part, the survivors and survivor of them, their successors and assigns, to wit: First, to pay the said parties of the first part, the survivors and survivor of them, their successors and assigns, the just and full sum of two hundred and eiglxty-seven dollars, in manner following, viz.: One dollar upon the delivery of this agreement, the receipt whereof is hereby acknowledged; one hundred and forty-three XW dollars on the 1st day of January, 1861, with interest thereon, and upon the whole sum unpaid, at the rate of six per cent, per annum, and with interest at the rate of ten per cent, per annum after maturity, and one hundred and forty-three and fW dollars on the 1st day- of January, in each and every year thereafter, with interest thereon and upon the whole sum unpaid, as above named, until the sum of two hundred and eighty-seven dollars, and interest thereon, is fully paid; each of said payments to be made at Boston, in said State of Massachusetts. Secondly, to pay all taxes due on said premises from the 1st day of January, one thousand eight hundred and fifty-nine: Provided, always, and these presents are upon the express condition, that, in case of the failure of the said party of the second part, his heirs, executors, administrators and assigns, in the performance of all er -either of the covenants and promises on his part to be performed, the said party of the first part, the survivor and survivors of them, their successors and assigns, shall have the right to declare this contract void, and thereupon to recover, by distress upon the premises or otherwise:, all the interest which shall have accrued upon this contract up to the day of declaring it void as rent for the use and occupation of said premises, to hold and to retain the moneys paid on their contract by the said parties of the second part, as liquidated damages, and to take immediate possession of the premises, to regard the person in possession, on such termination of the contract, as tenant or tenants holding over without permission (if that should be necessary to regain the prompt possession of the premises), and to recover all damages sustained by such holding over without permission, or by means of any waste committed or suffered on the premises by the destruction of timber or otherwise. “ ‘ In witness whereof the said parties to these presents have hereunto interchangably set their hands and seals the day and year first above written. “ ‘ ABIJAH FISHER, [l. s.] “‘D. H. NEVINS, [l.s.] “‘N. T. CARRAL, [l.s.] “‘DANIEL LOW, [l.s.] “‘SOUTHWORTH SHAW, [l.s.] “ ‘ By their Attorney, “‘SOUTHWORTH SHAW, [l.s.] “‘SAMUEL HEADLEY, Jr. [l.s.]’ “ And said defendant avers, that the sole and only consideration for the said promissory note in said second count mentioned, 'was the contract hereinbefore set forth and described, and that neither the said plaintiffs, nor any or either of them, nor any one for them, have tendered or delivered to the said defendant, nor anyone for him, a deed in accordance with the terms of said contract; and this he is ready to verify,” etc. To this plea the plaintiff interposed a general demurrer. The court sustained the demurrer, and the defendant abided by his plea. The cause'was brought to trial before the court, a jury having been waived by the parties. The plaintiff offered in evidence under the first count a note signed by “ Samuel Headley, Jr.,” to the reading of which in evidence the defendant objected, on the ground of a variance between it and the note described in said first count; but the court overruled the objection and permitted said note to be read in evidence, to which the defendant excepted. -The other note was admitted and read in evidence under the second count; and this was all the evidence in the case. Whereupon the court found the issues for the plaintiff, and assessed his damages at $380.37, to which defendant excepted. Thereupon defendant moved for a new trial, which motion the court overruled, and rendered judgment in favor of plaintiff and against defendant for said $380.37, damages and costs of suit, to all of which the defendant did then and there except. The case comes to this court by writ of error, and the errors assigned are as follows: 1. The court below erred in sustaining the demurrer of plaintiff below to the defendant’s second or special plea. 2. The Circuit Court erred in admitting improper evidence on behalf of the plaintiff below. 3. The Circuit Court erred in overruling the defendant’s motion for a new trial, and in rendering judgment in favor of plaintiff and against defendant. 4. The court below rendered judgment for too much. 5. The'record and proceedings are otherwise irregular, informal, insufficient and erroneous.