Curtis v. Watson

The opinion of the court was delivered by START, J. This cause was .heard on the -defendant’s demurrer to the plaintiff’s declaration. The declaration alleges that, on the 7th daj- of January, 1890, the defendant executed and delivered to the plaintiff a certain writing, as follows : “ I hereby agree to give W. S. Curtis, of Randolph, the sum of two thousand dollars, provided that said Curtis shall do work and sell for Woodbury Granite Co. .the lands and property of the same, for the sum of thirty thousand dollars cash in hand or approved paper, said amount to be paid said Curtis within thirty days from date of sale;” that the defendant was a large owner in the Wood-: [552] bury Granite Company; that the plaintiff did work for the Woodbury Granite Company and sold its land and property to W. B. Yiall and others for thirty thousand dollars; that the plaintiff notified the defendant of the sale and requested him to cause the property to be conveyed to said Viall; and that the defendant notified the plaintiff that the property would not be conveyed by the company. While the plaintiff alleges in his declaration that he did sell for the Woodbury Granite Company its property, it appears from other allegations therein that he only found a party willing to purchase at the price named in the contract, and gave the defendant notice that he had a purchaser ready to take it and requested him to cause it to be conveyed. .The plaintiff claims that this was a sale within the meaning of the contract, and that he is entitled to the two thousand dollars provided for therein. We think this was not such a performance of the contract by the plaintiff as entitles him to recover. The contract provides that payment shall be made within thirty days from the date of the sale. This clearly means within thirty days after a sale of the property was perfected. It does not mean that payment was to be made within thirty days after the plaintiff found a party willing to purchase. The finding of a purchaser and notifying the defendant to cause the property to be conveyed, was not a performance of the contract on the part of the plaintiff. What the plaintiff did was of no benefit to the defendant. The defendant did not agree to pay the plaintiff for finding a purchaser, or for services that might or might not result in effecting a sale of the property. He agreed to pay two thousand dollars within thirty days after a sale of the property. The plaintiff was not selling the defendant’s property. The property to be sold was owned by the Woodbury Granite Company, and it was just as essential that the plaintiff procure its assent to a sale as to find a purchaser. A part of the property was real estate, and a sale of it could not be effected without a conveyance from the com553 parry. It was the duty of the plaintiff to procure this conveyance if he would avail himself of the defendant’s offer. Whatever was necessary to be done to perfect a sale was to be done by the plaintiff. The defendant did not undertake to do anything in respect thereto. His undertaking was to pay for a perfected sale. He did not undertake to pay and also do a part of the work necessary to be done in order to effect a sale. The plaintiff had no right to call upon the defendant to procure a conveyance from the company. No such duty is imposed upon him by the contract, and it does not appear from the declaration that his interest.in the company was such that he could control a sale of its property, nor does it appear that he had authority to convey for the company; and the allegation in the declaration, that the plaintiff requested the defendant to cause the property of the company to be conveyed, would indicate that the defendant did not have such authority, and that the plaintiff so understood it. The plaintiff was bound to procure a perfected sale of the lands and other property of the Woodbury Granite Company before he could rightfully claim the sum provided for in the defendant’s offer. This he has not done. To perfect a sale of the lands owned by the Woodbury Granite Company implies a conveyance from the company, and the procuring of such a conveyance was as fully a part of the work to be performed by the plaintiff as if it had been particularly specified in the writing signed by the defendant. Currier v. Boston and Maine Railroad, 34 N. H. 498; Wiggin v. Scammon, 27 N. H. 360. This is not a case of failure of one party to a contract to perform his part of the contract by reason of the wrongful acts or omission of the other party. The declaration contains no allegation that would justify the court in holding that the defendant took upon himself so important a part of the work of effecting a sale as procuring a’conveyance from the company, or that he [554] lias in any way hindered or prevented the plaintiff from perfecting a sale of the property. Judgment reversed; demurrer sustained; declaration adjudged insufficient; and cause remanded.