Dougherty v. Stamps

Currier, Judge,

delivered the opinion of the court.

The plaintiff sues on a .promissory note. The answer admits its execution and avers that it was given for a portion of the purchase money for certain premises in Barry county, sold by the plaintiff to the defendant, September 21,1860 ; and then, among other things, states, for substance, that the sale was of seven hundred acres of valuable timber lands situated on Woolley Creek, in said county, with a steam saw-mill thereon; that the plaintiff, in pretended execution of this contract, delivered to the defendant, *246 at a subsequent time, a deed conveying only about four hundred acres of valueless lands in a different locality, with the exception of a few acres on said creek. The answer also charges fraudulent misrepresentations and suppressions on the part of the plaintiff, Avhich we do not deem it necessary to notice. The replication denies these charges of fraud, but does not deny the agreement to convey seven hundred acres of land on Woolley Creek, as alleged in the answer; nor does it aver any conveyance of such lands, or an offer to convey, or that the defendant accepted the deed of him of the four hundred acres as a satisfaction of the requirements ,of the contract of sale. There are some evasive averments, to the effect that the defendant understood that a portion of the lands contracted for were not the lands themselves, but mere “ claims” to Government lands, and that these claims had been conveyed. If it is maintained by the plaintiff that the defendant accepted something jn satisfaction of the contract different from its actual calls, it should be so alleged in the reply.

As the pleadings stand, there is a manifest and material breach , of the contract alleged in the answer and admitted in the replication, for which the defendant would be entitled to redress, but the results of the trial denied it to him. Besides, the contract read in evidence, being the contract alleged in the answer, describes the land to be conveyed as a “ certain parcel of land in Barry county, and on Woolley Greek, containing seven hundred acres more or less.” There is not the least proof that such lands were conveyed, or that other lands were accepted as a substitute for them; and the proof shows that the Woolley Creek lands were worth at least $1.25 an acre, while all but a few acres of the four hundred actually conveyed were nearly or quite valueless. ' The defendant has put it out of his power to rescind the contract as a whole, but there is nothing' in the record to show that he accepted what was conveyed to him as a satisfaction of the plaintiff’s obligations under the contract.

The case is considerably complicated, and we do not deem it necessary to go into its details. It must be remanded for a new trial, and it is proper to add that, in our view, the case was presented and tried upon an erroneous theory. If the plaintiff, for *247 a valuable consideration, bargained with the defendant to convey to him seven hundred acres of land on Woolley Creelc, in Barry county, and has neglected and refused to do so, he is liable in damages for the consequent breach of contract, unless there has been a waiver or an acceptance of something else in satisfaction. The fraud alleged is immaterial, so far as the bargainee’s right to recover such damages is concerned. As regards the alleged fraud in the sale of, the mill, it seems rather late to complain, the purchaser having examined the premises before the sale was concluded, and occupied them a month or so after without manifesting discontent. The law expects purchasers to exercise a reasonable degree of vigilance in looking after their affairs, and that they will act with reasonable promptitude.

The pleading might be improved in form. The answer seems to have been framed on the theory of legal defense, and instructions were given and a trial had in the Circuit Court apparently on that theory; b.ut equitable relief is asked in the prayer for a surrender and cancellation of the note sued on. We see no reason why the statutory counter claim would not fully meet the exigency of the defense.

The judgment of the District Court is reversed and the cause remanded for a new trial in accordance with these views.

The other judges concur.