Hammond v. Gilmore's Administrator

Church, J. Olmsted, the claimant, was under no obligation, by the contract under consideration, to perform any other condition precedent, than to cultivate the trees to be deliv [485] ered. Every other act of his was to be concurrent with some act of Hall's. Olmsted agreed to deliver the trees specified in the contract to Hall, on the 13th day of September, 1839; that is, they were then to be designated and counted, by them both; and in case of disagreement, referees mutually chosen were to decide. These were concurrent acts. The trees, after being thus designated and counted, were to remain, at Hall's election, upon the ground, one month ; and when he should choose to take them away, that is, when they should be actually delivered, Olmsted was to dig them up, and Hall agreed then to pay for them, in the manner specified in the contract. These were also concurrent acts. The case finds, that Olmsted cultivated the trees, and had them ready for delivery at the time fixed by the contract, and was then ready and willing to deliver them ; but that Hall did not appear to receive or pay for them, but at all times refused to perform the contract on his part. The law arising from these facts is certainly well established, and admits of no dispute. Although,there has been some looseness of expression in the books, and perhaps some confusion of opinion on this subject, entertained; yet we suppose that the principle now clearly recognized, is, that where there are mutual acts to be performed, by the contracting parties, at the same time, neither party is bound to do the first act, but each is bound to be able and ready to perform his own; and he who is thus able and ready, may sustain an action against him who is not. Kingston v. Preston, cited in Jones v. Barkley, Doug. 695. Morelon v. Lamb, 7 T. R. 125. Rawson & al. v. Johnson, 1 East 203. Bordenave v. Gregory, 5 East 107. 1 Chitt. Pl. 311. Pordage v. Cole, 1 Saund. 319. n. 4. Bean v. Atwater, 4 Conn. Rep. 3., does not oppose this principle. It would contravene the evident intention of the parties in this case, to hold, that Olmsted was bound to divest himself of his interest in the trees, while Hall refused to pay for them. It was urged with ingenuity of argument, that this was a claim against Gilmore as a surety, who was responsible only if Hall incurred the stipulated penalty ; and that Hall did not incur the penalty, unless Olmsted so tendered the trees as to vest a title to them in iZaZZ, thereby rendering him responsi [486] ble for their estimated value, 3000 dollars. This is a forced . construction of the agreement. The penalty was incurred by Hall, by refusing to accept and pay for the trees. By refusing, he violated his contract; and Gilmore was responsible for such breach of contract, to the same extent as Hall. The principle recognized by this court, in the case of Smith v. Loomis, 7 Conn. Rep. 110., is not applicable here. That was not a case of concurrent acts ; but the case of a promise by one only, founded upon a consideration already advanced by the other. It was a promissory note for the payment or delivery of bricks; and it was very cori'ectlv holden, that it was the duty of the promiser to deliver or tender them, in order to fulfill his promise. A second objection to the recovery of the demand, is, that no notice was given by Olmsted of Hall's default, either to Gilmore or the administrator upon his estate, previous to the presentment of the claim to the commissioners. The general rule as to the necessity of notice, is well known. Its application to practical cases, has sometimes been difficult. When,the fact alleged in the pleading, is to be considered as lying more properly or exclusively in the knowledge of the plaintiff than of the defendant, then the declaration ought to aver, that the defendant had notice thereof. This is a well settled rule of pleading. None is bound to give notice to another of that which that other person may otherwise inform himself of. Nor is notice necessary, where the thing lies as much in the cognizance of the one as of the other. 16 Vin. Abr. tit. Notice. P. 5. pl. 10. The King v. Holland, 5 T. R. 606. If an act is to be done to a third person, or by a third person, who is known, no notice need be given. Lawes on Pl. 221. 1 Chitt. Pl 320. 2 Wms. Saund. 62. n. 3. 3 Com. Dig. 675. tit. Pleading. 2 Salk. 457. 1 Sw. Dig. 697. Ward v. Henry, 5 Conn. Rep. 596. Williams v. Granger, 4 Day 444. Breed v. Hillhouse, 7 Conn. Rep. 523. In the present case, Gilmore was privy to the contract made by Hall: he, as well as Olmsted, knew its terms and its time of performance, and by an enquiry, could have ascertained whether a forfeiture against which he had himself stipulated, had been incurred. It was his duty, as surety, as Lord Eldon said, in the case of Wright v. Simpson, 6 Ves. jr. 734. to see to it, that his prin [487] cipal performed. Gilmore’s guaranty was not of that character, as to bring it within the rule adopted by this court, in the case of Craft v. Isham, 13 Conn. Rep. 28. That was a letter of credit, — a guaranty of a debt to be created or not, as others should decide. It looked entirely to the future. The defendant in that case could not know until notified, whether his guaranty had been accepted or acted upon. Nor could he know whether the plaintiff intended to look to him, or to his immediate debtor, for payment of any possible balance remaining due. Another objection to a recovery here, is, that Hall had real estate for a few days after his default, which might have been attached by Olmsted; and that due diligence was not used by Olmsted, in securing his demand against Hall. The cases in which such diligence is holden necessary, by our law, have not been extended beyond the indorsement and guaranty of notes ; and these, we believe, are peculiar to ourselves in this state. We do not advise a new trial. In this opinion the other Judges concurred. New trial not to be granted.