#### Chauncy Swan, Commissioner, plaintiff in error, *vs.*John R. Ewing, et al., defendants in error.

*Error to*Dubuque.

Where A. purchases from B , *a l,n*' 'c: Ami n-’r. a lot of land, and pays 25 per cent in advance, and gives ho -. ‘ ^ ; ; .hr 5-' i,re of the purchase money, if XL l>y mistake Rives a certificate in; a ■ t ini, < i d the lot which was designed to be sold to A. is sold to a diiu'ru.i .,, n i *\*on a suit brought upon A’s. notes, he will he permitted to show, by poioi *t*-fl t n ¡stake, and that the notes were given without a legal couskVjution .od , i! a ! > set off the amount paid in advance; is good, Here the mutuahtj o¡ ii <■ denands, has relation to the funds.

This was an action of assumpsit brought by Chauncy Swan, (late acting commissioner of lows City, who sued for the use and benefit of the territory of Iowa,) against John K. Ewing and James G. Chatham, upon three notes for sixty.six dollars and twenty-five cents each, dated August 19, 1839. and payable six months after date to Swan, acting commissioner, &c. The declaration is in the usual form, without any of the common counts.

The defendants plead the general issue with notice of failure of consideration, in consequence of the mistake in the sale of lots for which said notes were given, set off, &e.

At November term 1843, judgment was rendered' for the defendants (or the money advanced, to wit: $86,25, The plaintiff sued out a writ-of error from this court.

The following bill of exceptions sets forth all the errors assigned in the case. '

“ Be it remembered that on the trial of this cause defendants produced witnesses to prove that the notes in the declaration mentioned, were given for the three last instalments due for the purchase of a lot in Iowa City, at the public sale of lots of said city in August 1839. That defendants at said sale bid off lot No. 4, in block No. 97, and not lot No. 3, of same block. That the certificate of purchase given defendants by said Swan, of purchase of lot, was made out for lot No. 3 by mistake instead of lot No, 4. That the next morning after the tale and after the first instalment of the purchase money was made, and after said certificate was made out, said defendants discovered said mistake and ap*345plied to said S#ao to correct the «ame, who excused híAelí from. cjoiqg so then on the plea of want of true. That they again subsequently ap| plied to him to correct said mistake, when he replied that he could obt do it, for he had sold the lot to another man. To proving allswlSch, plaintiff by his counsel objected, winch objection was overruled^by^tlie court, and said testimony permitted to- be given. : ; -.’A;'

“ The defendants then offered in c-Vidcnce the conditions ofcsiM .sale, as follows :

“ Iowa Cm:, <1⁄81.03⁄83⁄8'7, 1839.

“ Ordere ’ ’ ’ " following b- the t, i it j mo cl i f i *\i/*In ,Jl it j highest bide fourth of th paid in thre een months. u , > 1 < t i 1⁄8 i i f ¡ r r i , iw p as they fall lot sold again at rmt s^„„,,vda,5 jalo. Ail puic„G....t^ «ic i..,aiiw to pay their first payment and take theif;certificate witntn two days from the close of sale, or otherwise forfeit their bids,

“C SWAN *) . .*» JOHN RONALDS, $ CcAm!SS10ners-

“ The above are the conditions of the sale of lots in Iowa City at the first sale, also, except so much of ¡he above, as requires the purchasers to take their certificates within two days from the close of sale, or otherwise forfeit their bids, “ C.-SWAN,.

. “ Late acting Commissioner.

“ And also proved that the said Chauncy Swan, the plaintiff, admitted said paper to be the conditions of sale as theicui stated. To whirl;, being given in evidence, plaintiff also objected, wi.ffh objection was by the court overruled, and said paper received as evidence of ¡he conditions of sale.

“ Defendants also produced to the court the certificate of the sale to them of lot No. 3, in block No. 97, in which a mistake was alleged to have occurred, as aforesaid, and also proved the payment of the first in-stalment on their said bid, to lbs said plaintiff, amounting to the sum of $60,25. To the proving of the last above item the plaintiff objected, but said objection was overruled bv the court.

*346“ The following is a copy of the certificate of purchase above referred to.

“ Territory op Iowa, Iowa City, *7*“ Office of Commissioners of Public Buildings. $

“ I Chauncy Swan, Acting Commissioner of Public Buildings at the seat of government for the territory aforesaid, do hereby certify that John R. Ewing and I. G, Chatham of the county of Dubuque, in the territory of Iowa, this day purchased lot No. 3, in block No. 97, in the city of Iowa, the established seat of government of the territory aforesaid, and having complied with the terms of sale, the said John R. Ewing and J. G. Chatham, their heirs or assigns are entitled to a deed of conveyance in fee simple to said lot, so soon as the title is obtained from the government of theünhed States, for which conveyance the faith of She territory of Iowa is hereby pledged.

“ Given under my hand this 19th day of August, A. D, 1839.

“C. SWAN,

“ Acting Commissioner of Public Buildings.

“ The plaintiff then offered in evidence the following certificate, to wit:

“ Office of Territorial Agent, *7*“ Iowa City, May 10th, 1843. y

*“*f certify that lot number three, (3) in block number ninety-seven, (97) as recorded in the plat of Iowa City, was sold by Chauncy Swan, as acting commissioner, on the 19th day of August, in the year 1839, for the sum of $265,00, and that Ewing and Chatham were the purchasers, as appears from the record of sales in this office.

“ Given ttnáer my hand this 10th day of May, 1843.

“JNO. M, COLEMAN,

“ Territorial Agent.

“ It was admitted by the defendants that the persons named in the above certificate, are the same as mentioned as defendants in this suit. Whereupon the plaintiff moved the court to render judgment in favor of said plaintiff for the amount of said notes with interest. But the court refused, and rendered judgment for the defendants for the sum of $66,25 to which the plaintiff by his counsel excepted,” <kc.

A. Thomas, for plaintiff in error.

Davk (fe Crawford, for defendants in error.

*347Per Curiam,

Mason, Chief Justice.

The first question we shall consider is, whether the parol evidence of want of consideration was properly admitted in the court below. That evidence was to the effect that the notes on which suit was brought, were given to secure a part of the purchase money for a certain lot of ground in Iowa City, which had been purchased at a public sale of lots, and that by fraud or mistake of the acting commissioner, a receipt was given for a different lot, while the one actually purchased was afterwards sold to another person.

This evidence was clearly admissible. It will not be disputed that in a case like the present, the defendant is permitted to show that the notes were given without consideration. Scarcely anything is more common in our courts than such a defence sustained by such proof. This is really all that was done in the present case, so far as respects the matter we are now considering. The lot was purchased, the notes executed therefor, and then before any deed or written evidence of sale had been executed, the lot was sold to another individual. Mere is a total want of consideration. The fact that a receipt was executed to the defendants for another lot does not change the aspect of the case. The purchaser was under no obligation to accept of any lot except that which ha had bought.

The fact that thecommissioners were a corporate body, or were required to keep a record, makes no difference in this respect. No party is permitted to make evidence for himself; much less will he be allowed to make evidence which the other party will not be permitted to contradict in the ordinary mode.

It is further objected that the defendants were allowed to introduce the written conditions of the second sale, without it being shown by sufficient evidence that they were the conditions of the first sale. Neither does it sufficiently appear by the record that the lots were sold at the first sale. Bui even if that had appeared, we think the substantial identity of the conditions of the two sales was sufficiently shown by the writ-en admission of the acting commissioner, to whom the notes were executed and in whose name the present suit was brought.

The only remaining question to be considered, is in relation to the eetoff which the defendants were permitted to prove, and under which they recovered a verdict. It is objected in the first place that the notice is not sufficiently definite. We think otherwise. The notice sets forth that the defendants claim the money paid by them at the time ‘.hey made their purchase, amounting to twenty-five per cent of the entire price they were to have paid for the lot. They claim that this amount *348is due them from the said plaintiff. Ñowj Swan himself, individually, is not the plaintiff. The demand is against him as commissioner.

Again it is said that this claim cannot be set off because the respective demands were not mutual at the time the suit was commenced. We should find it difficult to conceive what demands were mutual if these were not so. A lot is sold by a duly authorized commissioner. One fourth part of the money is paid down and notes given for the balance. Suit is brought on these notes which the defendants not only refuse to pay but they claim back the amount already paid. They claim their setoff out of' the same fund into which (heir money is to be paid if recovered in this suit. On the one hand it is claimed that they are indebted to this fund, on the other that the fund is indebted to them. The demands are mutual.

Finally, it is insisted that the set off is not in the same right as the demand, because if the contract is void on account of the mistake in regard to the lots, then the money paid to Swan was received in his own right. This by no means follows. The lot was sold by Swan as commissioner, the money paid to him as such. It is to be presumed that he did his duty and placed the money among She funds of the real plaintiff m this suit. That plaintiff has sanctioned the act of the commissioner by bringing this suit and urging the payment of the remainder of the money claimed to be due by virtue of this sale. It would be wholly unjust to allow this plaintiff, while thus waging the war on the one hand, to claim exemption from liability on the other.

Wo therefore think there was no error below.

judgment affirmed.