delivered the opinion of the Court:

The principal question arising upon this record is, whether the trial court erred in sustaining a demurrer to the second replication.

The substance of the plea is, that the sole consideration of this note, and of another note executed, by Gibson at the same time, for $4000, is, that plaintiff would, when the notes were delivered to him, execute and deliver a deed conveying the described property in fee to Gibson, and that the deed was not executed and delivered. Assuming the contract to be as pleaded, plaintiff undertook to execute and deliver the deed to Gibson on the 22d day of February, 1875, and, to pay him therefor, Gibson and Snell agreed to pay him $2100 on the 22d day of February, 1876, and Gibson agreed to pay him the further sum of $4000 on the 22d of February, 1879,—in other words, the $2100 was to be paid for the execution and delivery of a deed which was to be executed and delivered one year before the payment was to be made. The undertaking to pay was dependent upon the undertaking to convey, but its performance was to be subsequent. It is true, the burden is upon the defendants to prove their plea. But if the agreement as alleged be proved, there is no obligation upon them to prove a demand for the execution and delivery of the deed, for, as has been seen, under that alleged agreement the duty was upon the plaintiff to execute and deliver the deed one year before he was entitled to demand payment of the note. This, therefore, is not like the cases cited, where the deed is executed but the title fails. Here, Gibson has nothing, and he is sought to be coerced to make a payment which he was not to make until one year after the delivery of a deed which has not been executed and delivered, and which was the sole consideration for his undertaking to make payment. The agreement, in fact, may have been different, but for the present question we must accept it as alleged. Plainly, then, it was immaterial that plaintiff had not refused to execute the deed. That did not meet the plea. If the agreement was as alleged, then it only remained to show performance,—that is, that he had executed and delivered the deed,—or some excuse for nonperformance, as, a waiver, etc., neither of which was alleged. Bishop on Contracts, sec. 1434.

The first instruction asked by the plaintiff, and refused by the court, embodied the idea of the second replication, and was therefore properly refused. The instructions relating to a waiver were properly refused, because no issue in that respect was presented by the pleadings.

It is objected that the court improperly admitted evidence of what was said to Snell, in the absence of the plaintiff, to induce him to sign the note. But the court excluded all of the answer of the witness, in this respect, except that he told Snell what the contract- was with the plaintiff. Snell was entitled, certainly, to know that, and it could not prejudice plaintiff, therefore, that it was communicated to him. The instructions, as given, presented the law upon the issues raised by the pleadings with sufficient fullness and accuracy. The great contest in the lower courts was one of fact.

We can not say that there was no evidence tending to support the conclusion reached, and we must, therefore, in the view of the law we have expressed, affirm the judgment, which we accordingly do.

Judgment affirmed.