Van Rensselaer v. Miller

1 Hill & Den. 237

• Court: New York Supreme Court
• Decided: July 1, 1843
• Status: Published

Opinion

By the Court,

Nelson, Ch. J.

The covenant is absolute to pay the several sums specified in the agreement of Wiltsey at the time and in the manner therein mentioned; and we have repeatedly held in like cases, that notice of the default in the payment by the principal debtor is not a condition of the obligation. The undertaking also, fairly covers the instalment to be paid at the time of the execution of the instrument—there is no exception of any of the payments—the defendant is liable for the whole of them.

According to the case of Kobb v. Montgomery, 20 Johns., 15, the judge was right in overruling the offer to show that the plaintiff had parted with his title. The defendant, as there held, could not put himself on this .ground unless he has' first fulfilled the agreement on his part by offering to pay the money, due before a deed was to have been given, and demanding the same.

But, be that as it may, it is a sufficient answer, for this case, that this ground of defence has not béen pleaded, or notice given of it under the plea, of non est factum.

New trial denied.