It appears from the evidence, that appellee sold and conveyed to. appellant a lot of ground in the city of Chicago, for the sum of six thousand dollars. At the time of the sale, the parties entered into an agreement, by which appellant guaranteed that appellee should, within two years from that date, be reimbursed, out of the sale of the land, the sum paid, with twelve per cent, per annum advance, and exclusive of all expenses, taxes and assessments. Appellee agreed on his part, to divide the profits over and above twenty per cent, advance per annum, after paying all expenses incident to the sale, including taxes and necessary improvements. The appellant was by the agreement to have the power of selling the land at any time within the two years, and if not sold within twelve months, then appellee was to have the privilege of selling, and appellant of purchasing at appellee’s price.
From the terms of this agreement, appellant undertook that appellee should have his money, with twelve per cent, per annum advance, refunded from a sale of this land, within two years. Appellant was during all that time to have the privilege of selling the land to produce the requisite sum for the purpose. If, however, a sale was not effected by him within twelve months, appellee was to have the like power to sell, and appellant was to have the privilege of purchasing of him at such a price as he should designate. The appellee was bound, under this agreement, within the last of the two years, to sell the land if it was practicable, for a sum sufficient to reimburse himself for his money paid on the purchase, with the twelve per cent, per annum. And if he was unable to effect a sale for a sufficient sum, he should have offered it to appellant at that price. Under this agreement, he could not hold the land for a better price, and if it depreciated, compel the appellant to sustain the loss. He was bound by this agreement to offer it to appellant within the latter of the two years, and failing to do so he must be held to have elected to hold the land at the price he had paid.
The appellant was bound by the agreement, if the land was not sold within the two years, and appellee offered to resell it within that time, to become the purchaser at the six thousand dollars, with twelve per .cent, per annum added, over and above expenses, taxes and assessments. If appellee had so offered it to appellant, and he had refused to purchase, then he would *319have become liable under his covenant. But by this agreement he was not bound to purchase it after the two years had expired. His covenant cannot be construed to bind him to run the hazard of depreciation in the value of the land for an indefinite period. Prom the whole agreement, when considered together, it is apparent that the parties contemplated that all liability should cease with the expiration of the two years, unless a breach sooner occurred. And the evidence fails to show that appellant failed to keep his covenant, or was guilty of any breach.
The declaration was substantially defective, in not averring that appellee had offered to reconvey the property to appellant within two years, but on the contrary contained the averment that it was after the expiration of the two years. The appellant’s demurrer should have been sustained. The question, however, arises, whether the demurrer to defendant’s second and sixth pleas could be carried back to the declaration, as the plea of non est /«dem and other pleas had been filed. We have held that a party cannot both plead and demur at the same time, to the same pleading, and that as the general issue traverses every material allegation of the declaration, a demurrer filed at any subsequent stage of the proceeding cannot be carried back over the issue in fact and be sustained to the declaration. We still adhere to the rule; but as there is no general issue in the action of covenant, the rule cannot of course apply in that action. The plea of non est factum, cannot be regarded as a general issue, as it only denies the execution of the deed. The plea of covenants performed may be said to be nearer a general issue than any other, but it does not deny the execution of the deed, or the performance of covenants by the plaintiff, whilst it traverses the other averments. That plea was not interposed in this case. The court below therefore erred in not carrying back appellee’s demurrer, and sustaining it to his declaration.
The defect in the declaration was such, that it, on its face, showed that appellee had no right of recovery. It averred the offer to reconvey after the expiration of the two years, and it was not aided by verdict, as the proof sustained the averment, and precludes the presumption that the evidence showed a right of recovery. But even had the evidence shown an offer to re-convey within the two years, it could have availed nothing in opposition to the positive averment to the contrary. It is only cases defectively stated, by the omission of some material averments, that can be aided by verdict. This objection might have been taken in arrest of judgment had a motion been interposed, but it was not, and cannot be available on error in this court.
The judgment of the court below must be reversed, and the cause remanded. Judgment reversed.