West v. Emmons

Van Ness, J. delivered the opinion of the court. It would be difficult to reconcile all the cases on this subject. A general principle which pervades them all is, that where the plaintiff himself is to do an act to entitle him to the action, he must either show the act done, or, if it is not done, at least that he has performed every thing that was in his power, and which he was bound to do. The difficulty is in the application of the principle to particular cases. The covenants in the case before us are dependant. The defendant contracted, on a given day, to execute a conveyance of the property; and the plaintiff, to secure the money to be paid for it, stipulated to reconvey, by way of mortgage, at the same time. The question is, whether the averment of the plaintiff’s rea [181] dines s. on the day, to execute the mortgage, is or is not „ . . , , . .... . , , sufficient to entitle him to maintain this action; and the decision of it will depend upon the true construction of the agreement. In reason and good sense, it ought not to be required of the plaintiff to seal and tender a mortgage of the property agreed to be conveyed to him, be- . fore he had obtained a title to it from the defendant. All that ought to be demanded of him is to execute the mortgage, upon the defendant’s offering a complete performance of the agreement on his part. The declaration states, that on the day appointed for carrying the contract into effect, the plaintiff was ready to execute the mortgage, and that he requested the defendant to execute the deed, which he refused to do. There was, therefore, nothing to be done by the plaintiff, which he had the power, or (what in legal acceptation means the same thing) the right, to do. According to this construction of the contract, the plaintiff has done all that was legally incumbent on him, and the averment therefore is sufficient. There are cases where both parties have the power to - perform, without any act being previously necessary to be done by the other. In all such cases, it is necessary that the party bringing an action should aver, (if the act has not been actually performed,) a tender and refusal, which is equivalent to a performance. But this is not one of that description. What possible use could there be in going through the idle ceremony of executing and tendering the mortgage, when the defendant refused to deliver the deed ? This would be inverting the order in which this agreement was to be finally carried into effect. There are two cases, one in the court of K. B. and the other in the court of C. B. in England, in which the nature and necessity of averments, in cases of this kind, were fully considered, and in which the law, in my view, [182] has been correctly settled. (Rawson and others v. Johnson, 1 East, 203. and Waterhouse v. Skinner, 2 Bos.& Pull. 457.) The counsel who argued for the defendant jn the first of these cases, relied upon the decision in Merton v. Lamb. (7 Term Rep. 125.) There is, however, a wide difference between the two cases; for in the latter there was not even an averment of a readiness to perform on the part of the plaintiff, and for that reason the averment was justly held to be insufficient. Lawrence, J. in Rawson and others v. Johnson, in support of the opinion of the court, refers to the form of a declaration in Plowd. Rep. 180. Norwood v. Norwood and others, I have examined the pleadings in that case, and the judgment upon them, and I find it full to the point for which it was cited. The plaintiff is, therefore, entitled to judgment. Judgment for the plaintiff.