Reed v. Breeden

The opinion of the eourt was delivered, May 11th 1869, by Agnew, J. The only semblance of error complained of in this case is the answer to the plaintiff’s 2d point, in which the court was asked to" instruct the jury that the rents, issues and profits might be recouped against payment of the $40,000. Reed was to pay before delivery of the deed. It is thought that the court left it to the jury to find whether the deed was retained as a general security for payment, and in that event instructed them that a cash payment only would suffice. But an attentive examination of the charge shows that they submitted a single question of fact only resting on the testimony of Mr. Lucas. After refusing to answer the point affirmatively, the judge proceeded to state his reasons, to wit: that the action was not an equitable ejectment, in other words to enforce specific performance; for if the deed was delivered the plaintiff had a legal title; and if not delivered it was retained only for one of two purposes, first as a general security for payment, or second as an agreement making time of essence in the execution of the contract. It is evident it was not for the first, as there was no evidence that the deed was retained as a general security; for the testimony of Lucas was specific and pointed that the deed was withheld because of nonpayment, and was retained upon a distinct agreement making the payment at the appointed time of essence, and if not made at the time all negotiations were to be at an end. It is very clear, therefore, that no question could arise upon the recoupment of the rents, issues and profits, against the $40,000, and the case was narrowed down to the single question whether such an agreement to pay by a fixed time, as was stated by Lucas, existed. So the judge distinctly informed the jury, for after passing through his answers to the plaintiff’s points, he summed up thus — “ It follows, then, from our answers to these points that we submit this case to the jury upon a single question. Was the deed of 5th February 1864 held by Lucas under an agreement such as that to which he testifies, and destroyed in accordance therewith ?” Lucas had testified that the sale by Breeden & Co. to Reed was not consummated by reason of Reed’s failure to pay the $40,000, to meet the mortgage of the Portland Company, and the deed consequently was not delivered ; and that Breeden and Reed finally agreed that the deed should remain undelivered until Reed paid the $40,000 ; of the time of payment of which Reed should have thirty days’ notice; and in the meantime, if required, that Reed should give security for the timber taken off the property; and if he failed to pay the $40,000 or to give the security, the deed should be destroyed and all negotiations be at an end. The existence of this agreement [470] the court then proceeded to leave to the jury as the ruling question in the cause, concluding their charge by saying — If you believe the evidence of Lucas, such a contract as justified the burning of the deed, is shown. If you reject it or so much of it as relates to this subject, then there is no evidence of a contract left. The verdict was then made to turn on the decision of the question, if Lucas was believed, to be for the defendants, and if not, then for the plaintiff. It is very evident, therefore, that the case was not submitted to the jury on the answer to- the 2d point. That the right to destroy the deed and put an end to all negotiations for a sale, was the turning-point of the cause, is evident, and on this question Reed’s letters of the 1st and 8th of March 1864 were strongly corroborative of Lucas’s testimony. All the negotiations for the sale before the 5th of Eebruary 1864 were made dependent on the payment of the $40,000 upon the Portland Company’s mortgage, which was pressing upon Breeden very heavily. The parties met on the 5th of Eebruary to close the sale, but Reed was not ready to pay, and Blake was in the city pressing payment of the mortgage. Breeden insisted on cash payment, and refused to close the bargain. As yet there was no consummated sale. Clearly it was Breeden’s right to say: “ I will not deliver the deed nor close the bargain, but I will let the matter stand open; and if you pay the $40,000 by a day to be named by the Portland Company, I will then close it upon the terms contained in the deed and the two accompanying papers; and if not, all negotiations shall be at an end.” This was not a parol contract accompanying a written one, for the written bargain had not come into complete legal existence. There had been no delivery, and the deed was expressly to stand in abeyance as to delivery, until payment, while the two papers to accompany it were dependent on it, and were useless without it. Any other doctrine would prevent a party from preparing and executing a deed to be ready to perform a bargain, or to make a needful tender and demand of performance, for upon the opposite doctrine, the moment he did this, his title would be gone from him and vested in his adversary. The court was therefore clearly right in making the case turn on the agreement to pay the money testified to by Lucas. There is no well-founded objection to the letter of Lucas to Reed, of the 8th Eebruary 1864, on the ground that it was insufficient as a notice. By the terms of the bargain, the only notice Reed was entitled to was of the time fixed for the payment of the $40,000 to the Portland Company’s mortgage. This was given on the 8th of Eebruary 1864, by letter, and was recognised and acknowledged by Reed in his letters of 1st and 8th March 1864. Breeden’s right to destroy the deed on failure to make payment on the 1st of April, the time fixed, followed from the very terms [471] of the contract to which Reed was a party, and of which he was bound to take notice. Notice of the intention to destroy the deed and end the negotiations was unnecessary, as that right flowed directly from the non-payment of the money at the time, of which Reed was notified. The truth is, and it looks out at every step taken and every letter written by Reed, he either had not the money, and depended on a resale to raise it, or he chose voluntarily, for some reason known to himself, not to pay it. But of the fact that Breeden did act on the contract, and put an end to all negotiation, Read had immediate notice by Breeden’s letter of the 2d of April 1864. After this all of Read’s acts, such as his‘redemption of the lands on the 9th May 1864, were of no 'validity to keep the contract alive. The contract as proved by Lucas being found by the jury, the matter was at an end as concerns Reed, and the bona fides of the sale to Bradley was of no consequence except so far as it bore upon the credibility of Lucas’s statement. Finding no error in the record, the Judgment is affirmed.