Armor v. Fisk

Hallett, 0. J. In the investigation of this case we have not found it necessary to consider all the objections to the record made by the appellant. The rights of the parties are established by the two papers of date April 5,1864, and the agreement of November 11, 1863, to which reference is made in those papers, and we shall confine the discussion to those instruments. We learn from the agreement of November 11, 1863, that the appellee was jointly interested with the appellant in certain property described therein, which the latter held by deed from the former ; if the appellant should sell the property he covenanted to pay to the appellee $20,000, less any indebtedness of the appellee to Mm, and upon the condition that the appellee should successfully prosecute a certain suit or suits in which the property was involved, and “legally clear the premises hereinafter described of all persons claiming or occupying the same, so that the said John Armor should have and enjoy the quiet and peaceable possession of all the property, hereinafter described, so as to vest absolutely in the said Armor the title, to all of said property, both at law and in equity.” By the writings of. April 5, 1864, it appears that the sale referred to in the agreement had been effected, and the agreement was modified in some important particulars. The appellee then acknowledged that he had received $10,-000 of the $20,000 mentioned in the agreement, and the balance of $10,000 was divided into two equal parts, and separate conditions attached to each of the parts. First, the sum of $5,000 was payable “provided the said C. W. Fisk shall — 156 — 'successfully defend, a suit now pending in the district court of Gilpin county wherein Benjamin F. Smith and Dan. S. Parmalee are plaintiffs and Olías. W. Fisk is defendant, and 'shall obtain a writ of restitution from said court and be put in possession of a certain shaft on the Gregory extension lode (about the possession of which the suit is pending), and generally known as the shaft of said Fisk.” . Second, the sum of $5,000 was payable “when the title to said property is all cleared, as mentioned in a certain bond from said Armor to said Fisk, bearing date about December 20, 1862, and also in a certain agreement between said Armor and said Fisk, bearing date November 11, 1863, and on record.” Appellant claims that this last clause is changed so as to include all the conditions specified in the agreement by the pap^r of April 5, 1864, signed by the appellee. It is true that this writing of the appellee states that the last $5,000 is payable upon the conditions of the bond and agreement, and this standing alone would of course include all of those conditions, but the paper given by appellant mentions only the title to the property, and as he was the party upon whom the obligation to pay was placed, we may presume that he selected his language with care. Again, the condition respecting the Smith and Parmalee suit, mentioned in the agreement, was made applicable to the first $5,000 by the writings of April 5, and if the same condition was to be applied to the second sum of $5,000 the purpose of dividing the sum of $10,000 into two parts, as was done by those writings, is not apparent. It would seem, also, that the indebtedness and advances which occupied so large a space in the agreement of 1863, and was evidently the subject of much anxiety on the part of the appellant, had been extinguished before the writings of April 5 were drawn. The appellant makes no mention of it in the obligation signed by him, but he obliges himself to pay costs which should thereafter accrue in defending or securing the title to the property. This obligation to pay costs is not at all consistent with the notion that advances — 157 — previously made were yet in arrear. > It is plain that the first $5,000 was payable upon the s accessful issue of the Smith and Parmalee suit, and the second upon perfecting the title to the property in the appellant, and securing tobim the possession thereof. The appellant, having doubts as to the soundness of the title to 'the property, retained $10,000 of the purchase-money to secure himself against eventual loss. .As the issue of the Smith and Parmalee-suit, if favorable to the appellee, would in. some measure demonstrate his right to the property, the appellant was willing to pay one-half the amount upon -the successful termination of that controversy ; the remaining one-half of'the $10,000 was to abide-the result of a more comprehensive scrutiny of -the title, with a view to supply defects therein if any should be found. Nowhere were acts to be done by the appellee before he could call upon the appellant for payment, and if it were possible to perform these acts, the appellee should have averred in his declaration and proved upon the trial performance, or an excuse for the non-performance of them. In Campbell v. Jones, -6 Term B. 570, Lord Kenyon says: “ If one thing is to be done by a plaintiff, before his right of action accrues on the defendant’s covenant, it should be averred in the declaration that that thing was done.” : So, also, in 1 Ohitty’s PI. 321, we find the doctrine laid down as follows: ■ “Bat when the consideration of the defendant’s contract was executory, or his performance was to depend upon some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver the fulfillment of such condition precedent, whether it were in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the non-performance.” In the declaration in this cause we find only the common counts, and of course there is no averment of performance, or of excuse for the non-performance of the conditions precedent, mentioned in the writings of April 5, 1864, and — 158 — this upon the supposition that there is no inherent impossibility in performing those conditions is decisive of the question respecting their admissibility as evidence under the declaration. Our attention has been called to that numerous class of cases where, upon sale of goods, or performance of labor under special contract, the plaintiff, although unable to comply strictly with his contract, and therefore unable to support a special count upon it, has, nevertheless, been allowed to recover the value of his goods or services under common counts, and an attempt has been made to show that this case may stand ■ upon the doctrine of those cases. If the appellee had contracted to sell property to the appellant, and had conveyed the property, but not in the time or manner specified in his contract, and the appellant had accepted,the property, the analogy between those cases and this case would be easily traced, and we should have no difficulty in applying the rule laid down in those cases. But the present is not like those cases. Here was property sold, and part of the purchase-money paid, the vendee, with the consent of the vendor, withholding the balance of the purchase-money until the title to the property should be established, which is a payment to be made upon condition and not the substantial performance of a contract. We conclude, therefore, that the writings of April 5,1864, were not admissible under any count in the declaration, unless, indeed, the conditions mentioned in those writings were impossible of performance. As to the second of those conditions respecting the title, we cannot perceive any inherent impossibility in regard to its fulfillment, nor has any such impossibility been suggested. As to the first of those conditions respecting the Smith and Parmalee suit, it is said that there was no such suit pending in the district court of Gilpin county, at the date April 5, 1864, and if that fact appeared, it seems to us the condition would be impossible. If no suit existed, certainly the appellee could not resist successfully, nor could he obtain a writ of restitution therein. If the appellee had contracted to procure — 159 — Smith and Parmalee to institute a suit against him in the district court of Gilpin county, and to defeat the suit thus instituted, he would be held to his contract. But here the undertaking is to defeat a certain suit pending in a certain court, and if there is no suit pending in that court, it is like the case given in the books, of one who should^ contract to go to Borne in a day, inherently impossible to be performed. In Worsley v. Wood, 6 Term R. 718, Lord Kenyon declares that, “If there be a condition precedent to do an impossible ' thing, the obligation becomes single.” And the same doctrine is found in Bacon’s Abridgment, title Condition H. Under this rule, if the condition respecting the Smith and Parmalee suit was impossible, the first $5,000, mentioned in the writings of April 5, was payable unconditionally and presently after the making of the instrument. In the words of Lord Kenyon, the obligation was single, and there was no condition to be performed or excused and no necessity for any averment of performance or of excuse for the non-performance. The sum of money, being payable absolutely, might be recovered upon a count for an account stated. However, we find in the record no evidence tending to show the non-existence of the Smith and Parmalee suit, and for the want of such evidence the judgment must be reversed. The fact, if it exists, was provable by the records of the court of the date April 5, 1864, and those records, or a copy thereof, should have been introduced. Pitcher v. King, 1 Carr & Kir. 655 (47 E. C. L. R. 655); 1 Greenl. Ev., § 507. It is not necessary to consider further the admissibility of the evidence given in the court below, nor is it necessary to express any opinion as to the weight of the evidence. In conclusion, we desire to express our satisfaction with the manner in which this case was prepared for hearing in this court. The abstracts, prepared by counsel for appellant, present the parts of the record to which the attention of the court is directed in a full and perspicuous manner, and thereby the labors of the court have been very much lightened. The duty of preparing abstracts of the record in this court is usually so imperfectly performed, — 160 — that the abstracts are of no service whatever to the members of the court. We hope that the commendable practice inaugurated by the counsel for appellant may be Very generally observed. The judgment of the district court is reversed and the cause is remanded for further proceedings. Reversed.