Holeman v. Lamme

Holeman v. Lamme. Vendor and PubcbaseR—Pdeading.—Debt on a promissory note by tbe assignee of the payee against the maker. Plea, that the note was given in consideration of the purchase, by the defendant from the payee, of a certain tract of land; that the latter, at the time the note was given, executed to the former a bond conditioned for a conveyance of the land to him on the day the note was payable; and that no deed had, on that day or at any other- time, been made or offered to be made. Held, that the plea was good. Held, also, that a general replication to such plea, that the consideration had not failed in manner and form, <&c., was sufficient. ERROR to the Tippecanoe Circuit Court. Mix v. Ellsworth, 5 Ind., 517. [MAJORITY — Dewey, J.] Dewey, J. Debt upon two promissory notes by the as-signee of the payee against the maker. Plea, that the notes were given in consideration of the purchase by the defendant from- the payee of a certain tract of land; that the latter, at the time the notes were made, executed to the former a bond conditioned for the conveyance to him, by deed in fee simple, of the land so purchased, on the day on which the notes were payable; and that no deed had, at the time designated, or at any other time, been made or offered to be made. Replication, that the consideration of the notes had not failed in manner and form, &c. General demurrer to the replication sustained; and judgment for the defendant. Z. Baird, for the plaintiff. D. Mace, for the defendant. The judgment must be reversed. This Court has repeatedly decided, that a general replication in the form above stated to a plea of failure of consideration is good. Mitchell v. Sheldon, 2 Blackf., 185; Farmer v. Fairman, Nov. term, 1839. We have also held that a plea, similar to the one in the record, is a valid plea of the failure of consideration. Leonard v. Bates, 1 Blackf., 172; Cunningham v. Gwinn, 4 Id., 341; Owen v. Norris, November term, 1840. *P<?r Curiam.—The judgment is reversed with costs. Cause remanded, &c.