Cook v. Guice

28 Miss. 242

Opinion

Mr. Justice Fisheb,

delivered the opinion of the court.

This was a suit upon a writing obligatory, in the circuit court of Coahoma county, for the sum of $102.

The defendant below answered that the note sued on was given for a certain house and lot in the town of Delta, which the plaintiff was to convey to the defendant upon payment of the purchase-money; and that the plaintiff’ did not before the commencement of the suit demand payment of said note, and tender to the defendant a deed for said lot.

To this answer there was a general denial.

The question is, whether the plaintiff upon the issue thus formed, was bound to prove on the trial a demand of payment and a tender of the deed. To this question we respond in the affirmative. The plaintiff could and ought to have demurred to the answer, on the ground that the covenants set forth are independent, but this he omitted to do, and we cannot say that the issue is immaterial.

Judgment reversed, and cause remanded. Venire de novo.