dissent"> Mr. Justice Cothran

(dissenting) : This is an action of novel impression, growing out of the following facts which appear to be conceded on all sides:

The defendant Oglesby, a colored man, had been, prior to the year 1920, the owner of a small farm upon which he lived, containing 20 acres.

A. G. Bridges, referred to as Giles Bridges, a white man, a distant kinsman of the plaintiff, Tom Bridges, owned a farm of 52J4 acres.

*477 On -July 22, 1920, the plaintiff Tom Bridges and Giles Bridges entered into a contract for the purchase and sale of the 52>4 acres owned by Giles Bridges, the purchase price agreed upon being $6,750, $100 payable cash and the remainder $6,650 payable on December 1, 1920. Upon this balance it appears that Tom Bridges, prior to December 1, 1920, the maturity date of his obligation, paid to Giles Bridges the sum of $550.00 in addition to the $100 cash payment, leaving a balance due of December 1, 1920, of $6,100.

On August 30, 1920, the defendants Daniel and Oglesby entered into a contract for the purchase and sale of the 20 acres owned by Oglesby, the purchase price agreed upon being $2,000, payable on January 1, 1921. It appears that at the time this contract was entered into, there was an outstanding mortgage upon the tract, executed by Oglesby in favor of one F. N. Moore, to secure the payment of a note for $183.65, dated November 23, 1918, and we assume past due. This fact is not specifically stated in the contract between Daniel and Oglesby, but it is undisputed and explains an occult expression contained in it. “All papers is to be paid for out of this that is over it,” evidently meaning that whatever incumbrances existed upon the land were to be satisfied by Daniel out of the $2,000 purchase price.

On September 18, 1920, the plaintiff, Tom Bridges, who only held a contract with Giles Bridges for the purchase of the 52acres, as above recited, and Oglesby, entered into a contract for the purchase and sale of the 52acres, the purchase price being $7,525 (an advance of $775 over the price $6,750, which Tom Bridges was under contract to pay Giles Bridges), payable $2,000 in an order drawn by Ogles-by upon the defendant Daniel for the purchase price of the 20-acre tract, and the remainder $5,525, payable on December 1, 1920. Accordingly Oglesby delivered to Tom Bridges a paper of the following tenor:

*478 September 18, 1-920.

"Order for $2,000.00 against R. A. Daniel by Bill Oglesby for land purchased from Bill Oglesby by said Daniel. Pay to Tom Bridges or order $2,000.00 amount due me for 20 acres of land.

(Signed) Bill Oglesby.”

Thereupon Tom Bridges delivered to Oglesby a paper of the following tenor, without date, but evidently executed at the same time, September 18, 1920 :

“Received of Bill Oglesby order for $2,000.00 on R. A. Daniel, said $2,000.00. for land sold to R. A. Daniel, said $2,000.00 when paid to be first payment on land purchased from Tom Bridges that date. Balance of $5,525.00 to be paid on December 1, 1920, at which time I agree to make good and lawful titles to 52J/¿ acres of land more or less, known as the Oglesby place, and being the same purchased by me from Giles Bridges.

“(Signed) Tom Bridges.”

On September 20, 1920, two days thereafter, Tom Bridges presented the order above referred to to Daniel for his acceptance. Daniel did not accept it unconditionally, but delivered to Tom Bridges a paper of the following tenor:

“I hereby agree to pay to Tom Bridges the amount I am due Bill Oglesby on or before December 1, 1920, of the sum of seventy-five dollars discount.

“(Signed) Tom Bridges.

“R. A. Daniel.”

It is not explained why Tom Bridges should also have signed this paper, payable to himself. Evidently, as the testimony makes clear, the phrase “of the sum of $75 discount” means “off” or “less” the sum stated, as the obligation of Daniel to Oglesby was not due until January 1, 1921, and Tom Bridges agreed to allow Daniel a discount of $75 for accelerating the payment to December 1, 1920, that being the maturity date of the obligation of Tom *479 Bridges to Giles Bridges for the purchase price of the 52)4 acres.

It appears that after the contract between Oglesby and Daniel for the 20 acres was entered into, Daniel paid to Oglesby upon it $30 in cash; that as stated there was an outstanding mortgage in favor of Moore for $183.65 dated November 23, 1918; and that on November 27, 1920, Oglesby executed another mortgage upon the 20 acres to Moore Swofford & Co., to secure a note for $555.30; so that on December 1, 1920, the amount which Daniel was due to Oglesby was $2,000, less the $30 cash paid and the two mortgages above referred to with interest.

As the time drew near for the completion of the three contracts: (1) Between Daniel and Oglesby; (2) between Tom Bridges and Giles Bridges; and (3) between Oglesby and Tom Bridges (in each instance the vendee being first named), all of them practically maturing on the same day, December 1, 1920, it was ascertained that Daniel could not comply with his contract with Oglesby, for the reason that he could not raise the money; that Tom Bridges could not comply with his contract with Giles Bridges, for the reason that he was unable to collect from Daniel the amount which he had agreed to pay to Tom Bridges upon his (Daniel’s) contract with Oglesby; and that Oglesby could not comply with his contract with Tom Bridges for the reason that he could not raise the money.

Accordingly Daniel and Oglesby agreed to rescind their contract; this, however, without the acquiescence of Tom" Bridges, who held Daniel’s agreement to pay what he owed Oglesby upon the contract for the 20 acres; Tom Bridges and Giles Bridges agreed to rescind their contract by which Tom Bridges was to purchase the 52)4 acres, although prior to this rescission Tom Bridges was insisting upon Daniel’s compliance with his agreement so that he could comply with his contract with Giles Bridges.

*480 A short while before December 1, 1920, Giles Bridges, anticipating that Daniel would fail to comply with his agreement, and that consequently Tom Bridges would fail to comply with his contract with him (Giles Bridges), entered into a contract with one Smith for the sale and purchase of the 52)4 acres in the event that his apprehensions should be realized. Accordingly after Tom Bridges had failed to comply with his contract with Giles Bridges and with the acquiescence of Tom Bridges, the contract between Giles Bridges and Smith, conditionally entered into as stated, was consummated by the conveyance of the land, the 52)4 acres, by Giles Bridges to Smith.

On December 23, 1920, Tom Bridges instituted this action against Wm. Oglesby and R. A. Daniel. It is alleged m the complaint that Oglesby was made a party for the reason that he had assigned the obligation of Daniel to pay the amount due by him to Oglesby to the plaintiff Tom Bridges, and, specifically, that no relief is demanded against Oglesby. The cause of action against Daniel is based upon the agreement of September 20, 1920, by which Daniel obligated himself to pay to Tom Bridges “the amount I am due Bill Oglesby” on or before December 1, 1920, less the discount of $75 agreed upon, which is alleged to be $2,000, less $75, $1,925, with interest from December 1, 1920, at 7 per cent. Oglesby made no answer to the complaint, as there was no necessity for him to do. Daniel, however, did, and vigorously denies his liability upon the agreement for various reasons which need not be repeated here,' but are sufficient to form a basis for the conclusions announced.

The case was referred to a special referee, G. W. Speer, Esq., to hear and determine all issues. In his report, which will be incorporated in the report of the case, he recommends that Daniel be allowed credit for the $30 in cash paid by him to Oglesby and for the: amount of the outstanding Moore mortgage, $180, and that the plaintiff Tom Bridges *481 be allowed judgment for the balance ($2,000, less $210) $1,700, with interest. Upon exceptions to this report the Circuit Judge passed a formal order, sustaining the referee,’s report and rendering judgment in favor of the plaintiff for $1,790 with interest from January 1, 1921. From this judgment the defendant Daniel has appealed upon numerous exceptions, which ne.ed not be repeated here or considered separately; they sufficiently present the grounds for the conclusion herein announced.

Oglesby held an executory contract with Daniel by which Daniel was obligated to pay him the agreed purchase price of the 20 acres on January 1, 1921, upon a tender of a deed thereto by Oglesby. He had the right of course to assign to Tom Bridges his interest in that contract which was burdened with his (Oglesby’s) obligation to tender a deed. The order which he gave Tom Bridges on Daniel was practically an assignment of his pecuniary interest in the contract. The assignee could acquire no higher rights than his assignor had, and if Tom Bridges wished to realize upon his assignment it was incumbent upon him to force a tender by Oglesby to Daniel of a deed to the premises, for that was the measure and condition of Oglesby’s right prior to the assignment. Oglesby could not have sued upon Daniel’s obligation to him without tendering a deed, and so Tom Bridges standing in Oglesby’s shoes was under the obligation of having Oglesby tender the deed to Daniel. He has made no attempt to do this; in fact, relieves Oglesby specifically from his complaint of all responsibility in the matter.

But, assuming that Tom Bridges had brought an action against both Oglesby and Daniel for the purpose of compelling Oglesby to tender a deed and Daniel to comply by paying the agreed purchase price, an insuperable obstacle to recovery by him lies in the fact that the order óf Oglesby upon Daniel and Daniel’s conditional acceptance of it are inseparably linked up with the contract between Tom Bridges and Oglesby, whereby Tom Bridges agreed to accept *482 the order when paid as a credit upon Oglesbys obligation to him under the contract between them for the sale and purchase of the 52)4 acres, and Tom Bridges, by rescinding the trade between him and Giles Bridges and acquiesing in the sale from Giles Bridges to Smith, has made it impossible for him to comply with his trade with Oglesby, and hence the consideration for Daniel’s engagement to Tom Bridges has failed. To allow Tom Bridges to recover the $2,000 from Daniel would result in the anomalous situation that Tom Bridges will have received $2,000 (less $210.00) without complying with the contract, which'was the consideration for that engagement.

The judgment should be reversed, and the complaint dismissed.

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