Francis v. Deming

Thayer, J. To the plaintiffs’ complaint, claiming the foreclosure of a judgment lien, the defendants filed a special answer alleging in substance that the plaintiffs, after the judgment was rendered and after the judgment lien was filed, agreed to discharge the same if the defendants should within one month from June 10th, 1889, pay the plaintiffs a sum materially less than the amount of the judgment, give them a release of damages for the attachment made in the writ, and make return to the probate court that the defendant, Henry A. Deming, had given notice of the settlement of his administration account with the estate of one Emily Francis, deceased; and that said notice was given, said release signed, and on the 8th, 9th and 10th days of July, 1889, said Henry A. Deming went to the office of the plaintiffs’ attorney prepared to pay the money and deliver the release, but did not find the attorney, who was sick at home as the defendant then learned, and that afterwards and after the present suit was brought the money was actually tendered to the plaintiffs’ attorney, who refused to receive it. To this answer the plaintiffs demurred. The court sustained the demurrer and from that decision this appeal was taken. It is not alleged or claimed that the defendants agreed to obtain the release, make the return and pay the money within one month from June 10th, and that this agreement was accepted by the plaintiffs in discharge of the judgment. It was not an accord with mutual promises, therefore, but a mere promise by the plaintiffs to discharge the judgment if these things were done. Their performance was thus a condition precedent to the defendants’ right to a discharge. Goodrich et al. v. Stanley, 24 Conn., 613. The agreement, if the condition is fully performed, constitutes an accord and satisfaction of the judgment and is a bar to the action. Unperformed it is a mere accord and does not bar the action. Williams v. Stanton, 1 Root, 426 ; Scutt’s Appeal from Probate,.43 Conn., 109. This is admitted by the defendants, but it is claimed that, in law, what has been done bjr them constitutes performance. When money is to be paid by one party .to another and the contract fixes no place for the [111] payment, the rule is that the payment must be to the person at the place where he is, if he be within the same dominion. 1 Swift’s Dig., 292 ; 2 Parsons on Cont., 636. Parke, B., in Startup v. MacDonald, 6 Man. & G., 624, says—“ In such a case the party bound must find the other at his peril and within the time limited if he be within the four seas.” Here no place was fixed for the payment. It was the defendants’ duty, therefore, to seek the plaintiffs or their duly authorized agent or attorney, and make tender to them within the time limited. This they did not do. Calling at the office of the attorney prepared to pay does not meet the requirements of the law. Deming there learned that the attorney was at his house. He made no tender of the money and release at the office to the person in charge. He did not seek the attorney at his house and tender them to him. Nor did he seek the plaintiffs, who reside in an adjoining town, and tender performance to them. The allegations of the answer show no excuse for his failure to do so. No waiver of performance within the time limited is claimed. As the tender after the action was begun was of the money only, and did not include either interest or the costs which had accrued, it was not a legal tender and would not entitle the defendants to a discharge. But the defendants urge that this is a proceeding in equity, and that the rules of equity are not so stringent as those of law concerning the necessity of a tender within the time limited, and that, as the answer shows that they were on July 10th, and still are, ready and willing to perform, the demurrer should have been overruled. When a condition is subsequent and is broken equity will generally relieve the party in default if he shows sufficient excuse for nonperformance within the time specified. In the present case the defendants had no right to a discharge of the judgment except upon the performance of the condition within the time. The performance of the condition was the consideration for the plaintiffs’ promise to discharge the judgment. In such a case, where the rights of the party in default are dependent upon a condition precedent which is neither ful [112] filled nor waived, as no right or title vests, equity can afford no relief. Davis v. Gray, 16 Wall., 203 ; Giddings v. Ins. Co., 102 U. S. R., 111 ; Wells v. Smith, 2 Edw. Ch., 78 ; S. C., 7 Paige, 21 ; Seton v. Slade, 2 White & Tudor’s Leading Cases in Eq., (H. & W. Am. ed.,) 1143. This case presents no equities in the defendants’ favor. The plaintiffs agreed, if the defendants performed within one month, to accept nearly $300 less than was due them upon their judgment. The return of the probate notice the defendant Deming was legally bound to make. The release he has never tendered. Under these circumstances, showing no excuse for non-performance, neither law nor equity can afford him assistance. There was no error in the judgment appealed from. In this opinion the other judges concurred.