Curtis v. Alvord

Pardee, J. This is a scire facias brought upon a judgment in foreign attachment, in which Alvord was factorized by Curtis as the debtor of Joseph A. Rand; the defendant had [571] a judgment for costs in the Court of Common Pleas for Fair-field County; and the plaintiff moves for a new trial. The question is, was Alvord indebted to Rand on the 19th of February, 1876. Rand having invented a music holder, agreed, on February 1st, 1876, that he would apply for letters patent thereon and cause them to be issued to himself and Alvord jointly; Alvord paid him $125, and agreed to pay $175 in addition upon the issue of the patent; this had not issued on the 19th of February, 1876, the day of the service of the trustee process. The rule is that the trustee is not to be placed in a position worse than that which he would occupy if the principal had sued him for the debt. The plaintiff insists that the covenants in this agreement go to a part of the consideration only, on both sides, and were independent; and that it would not have been necessary for Rand to have proven that the patent had issued to have enabled him to recover; also that if the covenants are dependent, a failure to procure the patent is not such a breach as to bar him from a recovery unless such failure defeats the purposes of the contract; and that the trustee is liable even if the patent had not issued at the time of.the service. In Leonard v. Dyer, 26 Conn., 172, this court adopts the rule stated by Tindal, C. J., in Stavers v. Curling, 3 Bing. N. C., 355, that the question whether covenants are to be held dependent or independent of each other is to be determined by the intention of the parties as it appears on the instrument, and by the application of common sense to each particular case; to which intention, when once discovered, all technical forms must give way. In the case before us it is quite plain that the whole value of Alvord’s purchase was in the monopoly to be secured by the patent; the mutual covenant concerning this went to the whole consideration; the failure to procure this would entirely defeat his purpose; indeed, the intention of both parties to mate the issue a condition precedent to the payment of the $175 finds full and exact expression in the language of the [572] contract; by its terms Alvord owed no debt or duty to Rand on February 19th, 1876. The plaintiff further urges, that where a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant without averring performance. But there is no place here for the application of any such rule; the contract is incapable of division; Rand promised to do but one thing, namely, procure the patent; this promise unfulfilled, he had done nothing to entitle himself even to a partial payment; he had not by meritorious service created an indebtedness on the part of Alvord to himself from which a balance would be his due after deducting the damages resulting from his own breach of contract. In truth, he had performed no service, delivered no property, and consequently had no claim, legal or equitable. We do not advise a new trial. In this opinion the other judges concurred.