George Chapman, Appellant, v. Carlos McKay, Respondent

George Chapman, Appellant, v. Carlos McKay, Respondent. (Argued February 7, 1872 ; decided February 13, 1872.) The parties entered into a verbal agreement, void by the statute of frauds, by which plaintiff was to purchase of defendant one-half of a canal boat, and to pay therefor by surrendering certain promissory notes held by him against defendant. Plaintiff was also to advance money to repair the boat, and to secure his proportion of the cost of repairs; defendant was to execute to plaintiff a mortgage upon certain land, and to assign a contract for the purchase of other land. In the course of the negotiation, plaintiff gave up to defendant the notes, and defendant executed and handed to plaintiff a bill of sale of the one-half interest in the boat, and also the mortgage, but afterward refused to assign the contract; whereupon plaintiff notified defendant that he would not go on with the matter, demanded the notes, and, upon defendant’s refusal to return them, brought suit. Held, that the arrangement was an entirety, and was terminated by defendant’s refusal to assign the contract; it was not, therefore, a case of an attempted rescission of a contract for non-performance; that the bill of sale and mortgage never had any validity; and that, "without delivering up or offering to return them, plaintiff could recover the moneys due upon the notes. R. H. Tyler for appellant. Mr. Pa/rdee for respondent. [MAJORITY — Grover,, J.,] Grover,, J., reads opinion for reversal and new trial. All concur. Judgment reversed.