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Opinion delivered by

McGirk J.

Sharp brought an action of covenant on a deed against Colgan. — The declaration sets out the covenant to be, that on the 21st of November, 1818, Colgan covenanted with Sharp “that for and in consideration of five hundred dollars, all to be paid in cash except one sorrel horse, which is to be valued at his worth in cash by indifferent men, — the said Daniel Colgan has bargained and sold unto said Benjamin Sharp forty arpens of land, in the village of Cote Sans dissien and near the lower end thereof, being the possession which Colgan purchased of the late Jesse Evans. The said Colgan is to warrant and defend to the said Sharp, his heirs and assigns and is to attend at Sharp’s house on the first day of January next, to receive the horse, and to perfect this agreement, by giving the necessary obligations for securing and confirming the title of the said land in general warranty to the said Sharp, his heirs and assigns. The said Colgan is forthwith to put the said Sharp in possession of the forty arpens oí land, and as the same is now in possession of a certain Asa Williams, the said Sharp is to receive all the rents *264and profits arising therefrom, upon the said contract.— For the true performance of the above agreement, the parties bind themselves &c. in the sum of one thousand dollars.”

The plaintiff assigns for breaches, that Colgan did not attend at his house to make the necessary obligation to secure the title in general warranty. 2. That Colgan did not put him in possession. 3. That Colgan did not permit him to receive the rents and profits &c.

The defendant pleaded that he had put Sharp in possession, that he had allowed him to enjoy, and that he did enjoy the rents and profits, &c.

And as to the first breach Colgan pleaded, that on the day and at the place, Colgan attended and offered to said Sharp to make the necessary deed &c. and that sharp refused to accept the same.

The plea then goes on to allege that Sharp said and the defendant agreed that the bond already in execution was as good a deed as could then be made. Both parties agreed to let the matter rest for the present, and so the matter rested. The plaintiff took issue on the tender and said nothing as to the excuse. On the trial the defendant proved the excuse, but gave no proof of the tender; and Sharp’s counsel asked the court to instruct the jury that the evidence was not competent to prove a tender; the court refused the instruction, and for this refusal, this court revei’sed Colgan’s judgment, and the cause was remanded without any order for amending the pleadings. When the cause went back to the circuit court, the def. offered to plead the fact as stated above, to wit: that he attended at the time and place, and then and there offered to perfect said agreement by then and there offering to make, execute and deliver to Sharp the necessary obligations in said agreement specified to secure and confirm to Sharp, his heirs and assigns, according to the true intent, tenor and effect of sáid memorandum of an agreement, the title in general warranty to said Sharp, he the said Colgan, being then and there ready and willing to make the same, and that when he the defendant so offered to perfect said agreement, the plaintiff then and there waved the same, and excused the defendant from making and executing the said obligation at the then present time — and thereupon it was agreed by and between the plaintiff and defendant, that the said memorandum of agreement if recorded, would be as good an agreement to secure and confirm said title to the land, as any new deed could be, and the said Sharp then excused Colgan *265from making any other deed till afterwards requested. —The defendant also offered another plea to the same ef-feet, nearly as the above. The court refused to admit these pleas, and the defendant excepted to this refusal.— The parties then went to trial, the plaintiffhad judgment,. and the court assessed the plaintiff’s damages, allowing the original consideration and the interest, and refused to allow Colgan any deduction for rents and profits.

Action of cova-naIit and breach maíung deedoiTa certain day — plea, that def. attended place,eandoffered to make the deed —5nd that plain-same, and excused the def-fr°m making g¿od pelea.t0 e 8it is no objection suc]> a plea, other^breaches assigned and that Plea does not provide*6such~ breaches’ are answered severally by seParate Plea3,

The first point made by the counsel of Colgan is, that the court erred in refusing to allow the amended pleas to be put in. It is objected by Mr. Wells for Sharp, that these pleas are not issuable, that is, they are subject to demurrer. The objection to these pleas is, that they profess in the commencement to be an answer to the whole action, and then only answer one breach, that is, they only answer the breach of failing to make further assurance; and to sustain this, the counsel cites, 1st Chitty’s pleading 411. It is true that Chitty does so lay down the law to be, and cites for proof 1st Saunders Rep. 28, note 1, 2 and 3. The notes make out the rule to be, that where the plea in its commencement professes to be an answer to the whole declaration or count, and in truth is only an answer to a part, the plaintiff may demur and cannot take judgment for the part unanswered. But the thing unanswered, must be material to the gist of the action.

This rule as a general rule, if intended to be applicable to all pleas commencing in answer to^the whole and only answering part,, cannot be founded in jus tice, and cannot promote the attainment of justice. Suppose the rule general and universal, and then apply it to the before us, and injustice would be done. Here the plea begins, by saying the plaintiff ought to be barred of his action, because the defendant says Sharp excused him from making the deed. Now if there was no other plea filed in the case, the breach that Colgan refused to let Sharp have the rent, would be unanswered, and so would the breach, that Colgan refused to put Sharp in possession be unanswered. But in this case, both these breaches are answered severally by separate pleas, and the plaintiffis not under the necessity to demur to compel his adversary to give an answer to his whole demand. This right to demur is only intended as a weapon in the hands of the plaintiff to force the defendant to answer all or none. In this case the reason why a demurrer would be allowed at all, does not exist; he therefore ought not to be allowed to demur for the cause alleged, and if he did, *266it Should be stricken out, because the case is not within the reason, object or justice of the rule.

Such a plea ia admissible at law.Tompkins J-point?2 °n * 18na° dam;?" s"may be recovered on the covenant sued w 1 11 'No affidavit of the merits of an sary Tvhen There is evidence on file before the court, the trutl? oTsuch

It was the duty of the court to look into the state of the pleading when the amendment was offered and see how one part of the defence would affect the merits of the case, and allow the pleading to be so amended as to put all the merits in issue. This was not done, and in our opinion these pleas ought to have been received.

The next objection to these pleas is, that the matter the pleas would not form any defence at law for the It is first said, this plea seeks to change or enlarge the time for performance, by a parol agreement, and is within the statute of frauds,' it not being in writing.

To this objection it is answered by Mr. Hayden for Colgan, that the agreement here pleaded does not diminish or enlarge any interest already existing, nor does it create or attempt to create any new interest concerning land. We think there is force in this answer. The quantity of the right of the plaintiff is not at all changed, but the time ot performing the duty is postponed. We will not at this time undertake to decide positively that the matter of the plea is pleadable at law, but a majority of the court feel strongly inclined to think it may be available if the parties were mutually mistaken as to the effect of the agreement, and should for that reason cease all action by consent; justice requires that neither should-gain any advantage over the other. And why cannot the law do this justice? No discovery is wanted; no aid from a court of equity is needed to find out the truth.— When Sharp formed the memorandum, was not the thing necessary to secure him the title, all he had to do would be to make his request to Colgan to proceed to fulfil his covenant, and if Colgan could not or would not, then Sharp might with justice complain.

What ought to be rules of damages in this case we are not entirely satisfied — a majority of the court however, incline rather to the opinion that the rule of damages this case is about the best general rule. For the error of refusing the leave to file the pleas, the

judgment ought to be reversed. — Some objection to filing these pleas, on the ground that there no affidavit of merits, and of the truth of the pleas. evidence on file which the court heard, fully established the truth of the pleas, so as to enable the court to know defendant was not trifling with the court,

.Judgment reversed and remanded, with leave to file the pleas on paying the costs thereof.

*267Tompkins J.

_ Colgan, in my opinion, has broken his covenat with Sharp, and at law, it will avail him nothing to say that Sharp dispensed with his performance of his contract for the time. In a court of chancery this excuse might avail him, to induce the court to decree that Sharp should be compelled to receive yet, a title to the land, as he had caused the defendant to be careless in keeping his covenant. In the rest of the opinion I concur.

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