May 7, 1880.)
(Oireuit OQUrt, D. Nebraska.
COVENANTS OF WARRANTY-DEFENcEs.-In an action for breach of covenant of warranty, the defence that the covenant sued upon W'IS a joint one, and that it was sued upon as several, can be made undcl' an answer denying there iii anything due. DEED-STATEMENT OF CONSIDEUATION.-The statement of theconsideration in a deed is prima facie only, and may be rebutted. BAME-ESTOPPEL-W ASTE.-One who has given a deed of lands with covenants of warranty is estopped from denying that the grantee is the owner, and cannot complain of waste committed by such grantee.
WARRANTY-COVENANT-DAMAGEs.-In an action for breach of covenant of warranty the measure of damages is the consideration money, with interest.
J. M. Woolworth, for plaintiff. J. G. Gvrwin and John D. Howe, for defendants. MCCRARY, C. J. Bill in equity seeking to recover judgment for damages of a covenant of warranty in a deed of real estate, and for an accounting, to the end that the sum recovered may be set off against a certain judgment held by defendant David Leach against plaintiff. Defendant asks leave to amend his answer by alleging the following facts: First. That the warranty deed upon which plaintiff sues was not the deed of David Leach alone, but the joint deed of David Leach and Jane E. Leach, his wife. The latter is not joined. The original answer is in effect a denial of the right of plaintiff to recover, and it is not necessary for defendant to plead specially that the covenant of warranty was joint, and not joint and several. The plaintiff must make out his case, and the defence now sought to be specially pleaded can be insisted upon under the pleadings as they stand. If the plaintiff is not entitled to recover on the covenants in the deed sued on, when he comes to offer it in evidence that defence can be made. It is not necessary to consider now whether the husband can be sued alone upon a covenant of warranty contained in a deed exe-
PATRICK v. LEACH.
cuted by him, jointly with his wife, and for the conveyance of the wife's separate property. I hold that, if the proof shall show the facts to be as claimed, the defence can be mane under the answer which claims that there is nothing due the plaintiff on the covenants sued on. Defendant asks leave to amend by plea only that the consideration for the deed sued on was only $2,000, and not $77,000, as alleged. The real consideration may be shown under the pleadings as they stand. The sum named in the consideration clause of the deed is only prima facie, and not binding on either party. Defendant may show that the consideration was less than the sum named. Rawle on Covenants, 258, 259. Third. It is proposed to amend the answer by alleging that while the land conveyed by the warranty deed was in possession of plaintiff, under defendant's warranty deed, he committed waste upon the same. This, if shown, would constitute no defence to a suit'to recover damages for breach. of the covenant of warranty. It is now well settled that the measure of damages in such a suit is the consideration money and interest, and that the recovery is not to be increased by an increase in the value of the .land, nor diminished by a decrease in such value. The parties are to be regarded as having fixed the measure of damages when they agreed upon the value of the land at the time of the sale. Rawle on Covenants, 235, 236, 23'1,et seq.; 6 Wheat. 118. Besides, a.s between plaintiff and defendant Leach, the land was the plaintiff's, and he was at liberty to do as he pleased with it. He held it mider warranty deed from defendant, who is estopped from saying that notwithstanding his he still owned or was interested in the land conveyed so as to be entitled to sue and recover for waste committed upon it. The motion for leave to amend is overruled.
ANDRESSEN and others v. THE FIRST NATIONAL BANK OF NORTHFIELD.
(Cz'rcuit Court, D. Minnesota.
OF' EXCHANGE-AocEPTANOE.-Anyact clearly indicating an intention to comply with the request of the drawer of a bill of exchange, as paying part in cash, and issuing certificate of deposit for the balance, will constitute an acceptance.
S.A.ME-SAlIE-REVOCATlON OF' ACCEPTANCE.-After a bill of exchange has been received, and the proceeds credited to the payee, who presentsit, the drawee cannot thereafter, by arrangement with the payee, revoke such acceptance and hold the drawer. SAME-REPAYMENT BY DRAWER OF ACCEPTED DRAFT.-Repayment of & draft in this case by the drawer, having been made in ignorance of facts showing an acceptance by the drawee, it cannot be regarded as voluntary, and the amount thereof may be recovered from such drawee.
Action at law, tried before the court without a jury. Oameron, Losey Bunn and Geo. L. d; Ohas. E. Otis, for plaintiffs. Perkins Whipple and Gordon E. Cole, for defendant. NELSON, D. J. This suit is brought to recover from the de· fendant $2,728.49, with interest from October 1, 1878. The trial is before the court without a jury, and tue fol. lowing are the facts: The plaintiffs, citizens of the kingdom of Norway, are bankers, doing business at Christiania. The firm of Wilson & Jurgens, bankers in the city of La Crosse, Wisconsin, and the correspondents of the plaintiffs, sent to them a printed list of their correspondents in this country, among whom was the defendant, and authorized the plaintift's to draw drafts on them, to be paid on account of Wilson & Jurgens. The plaintiffs drew a draft as follows: "For $2,724.87, gold. CHRISTIANIA, 16th August, 1878. "Three days after sight pay this first of exchange, (second unpaid), to the order of Mr. Ole Mikkelsen, two thousand seven hundred twenty-four dollars eighty.seven cents, gold,