Dowdle v. Camp — 12 Johns. 451

Majority

p. 451

Dowdle against Camp.

Headnote

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IN ERROR, on certiorari to a justice’s court. 7 J

The plaintiff in error brought an action for goods sold and delivered, in the court below, against the defendant in error. The defendant pleaded the general issue, and gave notice of set-off. It appeared, on the trial, that, in the fall of 1810, the plaintiff agreed to purchase of the defendan two acres of land, at 45 dollars per acre; and, towards payment, to let the defendant have a cow, valued at 16 dollars. The contract was by paroi. The defendant, a short time after the bargain, had the land surveyed, and offered to give the plaintiff a deed of it, on receiving a mortgage to secure the payment; but the plaintiff declined receiving the deed, until he had completed the payment. It also appeared, from the plaintiff’s confessions, that the defendant had extended the time of payment, and that, if not made within the extended time, which was long since past, the cow should be forfeited. The justice nonsuited the plaintiff.

N. Williams, for the plaintiff in error.

He cited Crawford v. Morrell, 8 Johns. Rep. 256 ., and Tappenden v. Randall, 2 Bos. & Pull. 467.

Storrs, contra.

The cow, for which this action, was.'brought, was' delivered by the plaintiff to the defendant, in part payment 0f a piece of land, the contract for the purchase .of. which was by paroi, The defendant,, it appears,, has always .been .willing, and has offered to give a conveyance of the land, pursuant to his- contract, but the plaintiff declined receiving, it,' and now. brings his action to.-recover back what lie has paid upon his contract. The action cannot certainly be .sustained, under the circumstances disclosed by the return ; for the cow hadbecome forfeited according to the plaintiff ’s own -confession. But the action would, not be sustainable, independent of this. The contract was’not illegal At its inceptionj although hot binding upon the parties but payment of part of the purchase money was such par£ performance as to become binding on the defondant, and a court of equity wrnuld compel a conveyance, The judgment must,, therefore, be affirmed. .. . .

Judgment -affirmed,,