Porter v. Stewart

The opinion of the Court was pronounced by Prentiss, J. The condition of the bond declared upon, after reciting that the defendant had sold to the plaintiffs a certain oil-mill for the sum of $3000, and taken their notes for the same, one for $450, payable in linseed oil or beef cattle the 1st day of May, 1822; one for $450, payable the 1st day of May; 1823 ; one for $619, payable the 1st day of May, 1824, and the others for the residue of the sum in annual payments, the last becoming due the 1st day of May, 1828, — provides, that if the defendant, on the payment, by the plaintiffs, of the two first notes, according to the tenor of the same, and their executing to him a mortgage deed of the mill, to secure the payment of the other notes, should execute and deliver to the plaintiffs a warrantee deed of the mill, then the bond was to be void, otherwise, to remain in force. The payment of the two first notes according to the tenor, and a tender of the mortgage deed to secure the payment of the remaining notes, being conditions precedent to be performed by the plaintiffs, the plaintiffs, after setting forth the condition of the bond in the declaration, have alleged, that they paid the first mentioned note on the 1st day of May, 1822, and the other on the 1st day of May, 1823, according to their tenor, and on the latter day tendered the mortgage deed. The evidence offered, was, not that the notes were paid at the time they respectively became due, but that the first was paid in 1823, and the second in 1824, and that the mortgage deed was tendered on the 26th of September, in the latter year. The question is, whether the evidence thus offered showed a performance on the part of the plaintiffs, and was admissible in support of the averments in the declaration. It is a general rule, that a condition precedent must be strictly performed, and that the performance must be proved as laid ; and it seems to be well established, that a parol agreement to enlarge the lime of performance, and performance within the enlarged time, will not support an action upon a bond or deed. This doctrine is laid down in numerous adjudged cases. In Little vs. Holland, 3 Term R. 590, the plaintiff covenanted to build two houses for the defendant by a certain day, for £500, covenanted to be paid him in consideration thereof, and averred, in an action of covenant for the money, that the houses were built within the time. The evidence was, that the parties, by a parol .agreement, had enlarged the time, and that the houses were built within the enlarged time, though not within the time mentioned in the deed. It was argued, for the plain [425] tiff, that though the subsequent agreement by parol could not vary the terms of the deed, it was evidence of performance, 'and the defendant was estopped to say, that it was not a substantial performance, within the terms of the original agreement. But it was determined, that it was no performance, and that the evidence did not support the declaration. The case of Brown vs. Goodman, contained in a note to the case just mentioned, was an action on an arbitration bond, in which the time was limited for the arbitrator to make his award. The declaration stated, that the time was enlarged by the mutual agreement of the parties, within which enlarged time the arbitrator made his award. On demurrer, judgment was given for the defendant. Lord Kenyon said, that the question was not then to be discussed, whether the party hád not some remedy, but whether his remedy lay on the bond. To determine which, he said, the court must look to the bond, and there it appeared that the defendant had bound himself to abide by an award under a penalty, if made within a given time ; but that could never extend the penalty to an award made after that time, under a new agreement. In Cook vs. Jennings, 7 Term R. 381, where the defendant had covenanted to pay so much freight for goods delivered at Liverpool, it was decided, that the freight could not be recovered in an action upon the covenant, the ship not having arrived at Liverpool, though the defendant had accepted the goods at another place. The court said it was not necessary to determine, whether or not the plaintiff might not have brought an action of assumpsit; but the question vras, whether or not he could enforce payment of the money under the deed, the goods not having arrived at Liverpool. The same principle was established in the case of Heard vs. Wadham, 1 East, 619. There the plaintiff, having covenanted that he would, on or before a certain day, convey to the defendant certain lands, in consideration of which the defendant had covenanted to pay a certain sum, it was held, that the action on the covenant could not be maintained, without averring a conveyance, or readiness to convey to the defendant, on or before the day; and that it was not sufficient to show, that the defendant, after the day, accepted a conveyance in lieu of the conveyance covenanted to be made. Lord Kenyon said, the plaintiff had covenanted to do certain things which had not been done; but the other party had indulgently accepted something else in lieu of that which he might have insisted upon. The parol agreement, he added, might be sufficient whereon to found an action of assumpsit; but how could it be the foundation of an action of covenant under seal, whereby the parties bound themselves to perform a different contract. Lawrence, J. said, that the conveyance of the estate was a condition precedent to the plaintiff’s right of action, and he must show, that he had performed, or was ready to perform his part on the day. To the same effect is the case of Phillips vs. Rose, 8 Johns. Rep. 393. The plaintiff covenanted to erect a frame of certain di~ [426] mensi'°ns, on a certain lot, for an oil-mill, on or before the 15lJi of June, and the defendant covenanted to perform certain acts on his part. The declaration averred, that the plaintiff had fulfilled on his part, as to erecting the frame of the mill by the 15th of June, and alleged a bi’each of the covenant on the part of the defendant. The evidence was, that the frame of the mill was erected, but not until the 16th of September; that the defendant said it was immaterial whether the frame was erected by the 15th of June or not; and that he consented to the alterations in the dimensions, and assisted in fixing the spot, and directing the workman in erecting the building. The court determined, that the contract must be proved as laid, and that evidence that the contract was enlarged by parol agreement would not support the declaration. They recognized the authority of the case of Little vs. Holland, and considered it as governing the case before them. In Freeman vs. Adams, 9 Johns. Rep. 115, the question was, whether an action would lie upon an arbitration bond, for the non-performanGe of an award, when it appeared that the award was not made within the time specified in the bond, and when it appeared that the parties, by an agreement under their hands and seals, endorsed on the bond,,had enlarged the time, and that the award was made within such enlarged time. The court observed, that the case of Brown vs. Goodman was a solemn determination on the same point, and decisive that a suit would not lie upon the bond. The principle, they said, was incontrovertible, and it was sound law, that if a contract be subsequently changed, you must declare otherwise than on the contract itself. It is true, that the case just cited, as to the main point involved in it, is inconsistent with the decision in Creig vs. Talbot, 2 Barn. & Cres. 179. There, the declaration, after setting forth the condition of the bond, by which the award was to be made within a limited time, stated, that beforethat time expired, the parties, by deed, agreed to enlarge the time, and that the award was made within the enlarged time; and it was held, that the action was maintainable upon the bond. The court considered, that the second deed was not Substituted as a security for the performance of the award, instead of the bond, but was intended merely to vary the day mentioned in the condition of the bond, and to introduce, as a term, into that condition, the extended period of time for making the award, leaving the bond in force as a subsisting security. But the decision proceeded expressly upon the ground, that ■ the agreement to enlarge the time was by deed; for the court admitted, that if the agreement had not been by deed, it could not continue the effect of the bond, and, consequently, would not give a remedy upon it, although it might leave the party a remedy for the breach of the parol contract. These cases, which have never been denied or even questioned, fully settle the law, that the time of performance of p condition in a deed cannot be enlarged by parol agreement, so [427] that an action can be maintained on the deed; and that: to maintain an action upon the deed, performance must be averred according to the stipulation in the deed, and must be proved as laid. The cases cited by the plaintiffs’ counsel merely •show, that where there is a covenant to perform a certain thing at a certain time, if performance of another thing, or performance at a different time, be accepted in lieu of the other, it is an answer to an action for the non-performance of the thing stipulated. The distinction is, between pleading the matter as a defence, and making it the ground of an action ; and no case shows, that a performance, unless it be within the time stipulated by deed, will enable the party to maintain an action upon the deed. As applied to a parol agreement, the observation in Freeman vs. Adams is true — that there is a wide difference be>tween the case of a suit to enforce a bond, in consequence of such agreement, and a plea of a discharge by the obligor from a strict and literal compliance with the obligation. The case of Cuff vs. Penn, 1 Maule & Selwyn, 21, which has been relied upon as showing a recovery where the time of performance was enlarged by a subsequent agreetoent, was assumpsit on a simple contract; and there the recovery was had, not on the count on the original contract, but on the counts stating the original contract and the agreement enlarging the time of performance. It is very evident, that in that case, if the action had been simply on the original contract, with an averment of performance within the time stipulated in it, -evidence of the subsequent agreement enlarging the time, and performance within the enlarged time, would not have supported the declaration. It has been argued, that the acceptance of payment of the notes after the day, is evidence of payment at the day; and the defendant is estopped to say, that it was not a performance by the plaintiffs within the condition of the bond. The same argument, we have already seen, was urged in the case of Little vs. Holland, but the court would not yield to it. It is asked, if the parties by their acts have made the day immaterial, how can the court hold it otherwise ? The answer is, that we must: look to the condition of the bond, and if the parties in that have made the day material, it must bé so considered by the Court. It is very certain, that if the plaintiffs had averred performance on their part, after the day, under a parol agreement enlarging the time, the declaration would have been had on demurrer; for it is a rule in pleading, that a plaintiff cannot set forth matter of fact in his declaration, not contained in the deed itself, so as to alter the case. (Green vs. Horne, 1 Salk. 197.) Aware of this, the plaintiffs have averred performance at the day stated in the condition; that is, they have alleged that the first note was paid on the 1st day of May, 1822, and the second the 1st day of May, 1823, and that the mortgage was tendered on the same day. The evidence offered was, that the notes were paid in 1823 and 1824, and the mortgage [428] tendered on the 25th of September, 1824, after the third note had become due. Is it possible to say, consistent with the principle which runs through all the authorities, that this evidence supported the declaration ? We are persuaded, that there }s no case j0 i,e found, which gives countenance to such a doctrine; and to adopt it, would be repugnant to adjudged cases directly in point, and introduce an entire new principle into the law of pleading and evidence. Bates and Phelps, for the plaintiffs. Chipman and Starr, for the defendant. We cannot at law carry the defendant’s obligation beyond the terms of it; and what has he bound himself to do, in the bond which the plaintiffs have declared upon ? Why, to execute to them a deed, on condition of their paying the sums in the two notes mentioned, by given days, and tendering to him a mortgage to secure the payment of the other notes. The plaintiffs do not perform on their part according to the condition, and is the defendant then subject to an action on the bond for not performing on his part? Suppose the condition had been, that the defendant should execute and deliver the deed by a certain day stated, being after the two first notes became due, if the plaintiffs paid the notes according to their tenor. The plaintiffs do not pay the notes at the time, and the day stipulated for the defendant’s performance passes; would acceptance of payment afterwards by the defendant revive the bond, and give an action upon it ? This would hardly be pretended ; yet the case, as presented, is in principle the same; and to allow the action to be sustained on the evidence offered, would be equally inconsistent with the settled rules of law. The plaintiffs, however, are not without remedy. The acceptance of payment after the day, may be a sufficient performance in a court of equity; and on application there, complete justice may be done between the parties. Judgment for the defendant affirmed.