Swan v. Drury

Wilde J. delivered the opinion of the Court. This was an action of assumpsit on a written contract, whereby the (•<? ^ndants agreed to purchase of the plaintiff a certain farm and pasture, and to pay him therefor the sum of $ 3000, $ 800 to be paid by undoubted notes, when the deed should be ready and made out for them, and the remainder to be paid by annual instalments of $ 200, with interest. It was proved, that the plaintiff tendered to one of the defendants a deed of the farm &c. with the usual covenants of seisin and warranty and covenant against incumbrances, but it was also proved that there was a mortgage on the premises of $ 1000 then due to one Jennison ; and the defendants refused to receive the deed and execute me contract on their part. On this evidence the jury were instructed, that before the plaintiff could demand payment, he was bound to tender a conveyance to the defendants of an unincumbered title to the farm. And this instruction was clearly correct. The conveyance of the farm and the payment of the $ 800, were, by the terms of the contract, to be concurrent acts ; and the covenants or agreements of the parties were dependent. In all such cases, neither party can compel the performance of the contract by the other, without an actual performance of the agreement, or an offer to perform it, on his part. The agreement of the plaintiff was to convey the [489] farm, which must foe construed as an agreement to convey a good title free from all incumbrances. The defendants were not obliged to trust to the plaintiff’s covenants, or to make themselves liable to the payment of the mortgage, in advance, before the times of payment stipulated in his contract, or to be dispossessed of the premises by the mortgagee. There is a material distinction between the case at bar, and that of Aiken v. Sanford, 5 Mass. R. 494. In that case the condition of the bond was, to convey by a good and sufficient deed of warranty, and the deed was not to be given until after the payment of the purchase money. And the Court say, “ that if the money was to be paid on receiving the deed, it might be a reasonable construction, that a good and sufficient title should be conveyed.” That such is the law, we think very clear, according to all the authorities. The exception, also, to the rejection of the parol evidence, cannot, we think, be sustained. The plaintiff offered to prove thereby, that at the time of the making of the contract, the defendants knew of the incumbrance on the farm by the mortgage to Mrs. Jennison, and that it was then understood and agreed, that the mortgage should remain thereon. This evidence would have had a tendency to vary and contradict the terms of the written contract, and had no tendency to prove a subsequent waiver of the exception to the plaintiff’s title. It was therefore clearly inadmissible. It only remains to be considered, whether the jury were correctly instructed as to the subsequent waiver of the exception to the plaintiff’s title. The plaintiff introduced evidence tending to prove, that previously to the tender of the deed, the defendants had declared they should not insist on the removal of the incumbrance ; and, on this evidence, the jury were instructed, that parol declarations thus made would not amount to a waiver, unless, taken in connexion with what took place at the time of the tender, the whole evidence showed that the defendants intended at that time to waive such exception. The correctness of this instruction cannot be disputed, unless the defendants were bound by their previous declarations or promises. And we are of opinion, that they were not ob [490] ligatory, as they were made without consideration. It dots not appear that the plaintiff acted on the faith of these declarations, or that he has been subjected to any damage or expense thereby. The defendants therefore had a right, at the time of the tender, to insist on the plaintiff’s compliance with the terms of the written contract. Judgment on the verdict.