Bourland v. Gibson

Citations

• 124 Ill. 602
• 17 N.E. 319

Syllabus

<p>1. Vend OB and purchases—whether convey anee should precede payment—failure of consideration. The agent of the owner of a tract of land agreed to sell and convey the same to G., upon the latter giving his note for $2100, with security, payable one year after date, and another note of $4000, secured by deed of trust on the property, payable at a later date. The notes were made and delivered by G., payable to the agent, but no deed was ever made conveying the land to G., and suit was brought on the first note after its maturity: Held, that the undertaking in the note to pay was dependent upon the undertaking to convey, but the performance by the purchaser was to be subsequent to the conveyance, and that G. was under no obligation to demand a deed before he might refuse to pay the note, and that the facts constituted a total failure of consideration. In such case, it was the duty of the plaintiff to have executed and delivered the conveyance one year before he was entitled to payment of the first note.</p> <p>2. Instruction—must he based on some issue. A plaintiff is not entitled to an instruction based upon a waiver of his performance of a condition precedent, when the pleadings present no such issue.</p>