Soderberg v. Crockett

By the Court, Hawley, C. J.: Appellant, by virtue of certain written agreements between Frank G. Engstrom and himself, became entitled to receive one-fourth of the proceeds that might be realized out of an action, to be commenced by Engstrom against the Manhattan Silver Mining Company, “whether derived from an amicable settlement or otherwise.” 'The action was commenced in February, 1876; was thereafter transferred to the United States circuit court, and was there, on the fifth of February, 1877, “by the authority of said Engstrom, and the consent of said mining company, finally settled, adjusted and dismissed.” It appears from the stipulation, findings and judgment that by the terms of said settlement the Manhattan company agreed to .pay to the agents of Engstrom the sum of eleven thousand dollars; that three thousand dollars was paid in cash, and a «check, draft or certificate of deposit upon the.Anglo-California bank of San Francisco, payable to the joint order of said Engstrom and one D. E. Norton, was deposited with the state treasurer of Nevada, to be by him collected, converted into money or delivered to said Engstrom upon the execution and delivery of a quit claim deed, as hereinafter stated; that as a condition precedent to said Engstrom and Norton, or either of them, or appellant, “acquiring any right in or to said eight thousand dollars, it was further agreed by and between said Engstrom and said Manhattan Silver Mining Company [414] that said Engstrom and said Norton should, within a-reasonable time, convey to said Manhattan Mining Company, by quitclaim deed, a certain portion, to wit: Eleven hundred and fifty (1,150) feet of'the Dacota and Bolger mining claims, in Lander county, Nevada, and that said mining company should, in like manner, convey by quit-claim deed to said Engstrom and Norton a certain portion of the said Dacota mining claim, to wit: Three thousand four hundred and fifty feet thereof;, that said Engstrom, Norton and said mining company, respectively, failed to comply with the terms of said settlement in this respect; that afterwards the said mining company, at an expense of about two thousand. ($2,0Q0) dollars, became the. owner, by purchase at sheriff’s sales, under writs of execution against said Engstrom, of the whole of said Dacota and Bolger claims, and said Manhattan company now claims -to be the owner of said Dacota and' Bolger claims in its own right;” that said.Engstrom, on the fifth of November, 1877, moved, the circuit court to vacate the order and judgment of dismissal in said action; .that said motion was resisted by the Manhattan company and denied by the court; that on the fifteenth of, November, 1879, the state treasurer surrendered and delivered up the cheek, draft or certificate of deposit hereinbefore men-, tioned, to the Manhattan Silver Mining Company, having-notice of appellant’s elaim; that said company now claims to be the owner and holder of said check. This action was commenced by appellant to recover from the Manhattan Silver Mining Company the sum of two thousand two hundred and fifty dollars, claimed to be due him by reason of the transactions above stated. Engstrom, Norton and state treasurer Crockett were, made parties defendant, and judgment prayed for against all of the defendants. Engstrom and Norton were not served with process. No objection was presented by the Manhattan company or the court to plaintiff’s recovery on the ground of his failure to serve Engstrom and Norton until after all the testimony had been introduced, and then only by way of argument on defendant’s part against plaintiff’s right to recover. Upon the trial' appellant disclaimed any right to recover judgment against the state treasurer. [415] The district court came to the conclusion that Norton and Engstrom were indispensable parties to this action, and that the plaintiff was guilty of laches in not bringing them into court, and “ that neither said Engstrom and Norton, of either of them, nor said plaintiff, ever acquired any right or interest in or to said eight thousand dollars; or any part thereof.” Judgment was rendered in favor of defendants. We shall not discuss the question whether or not the laches of appellant in failing to serve Engstrom and Norton with process would justify the court in rendering judgment against him. We also leave out of the case the question of the effect of the release executed by appellant to Engstrom. In our opinion the other ground is absolutely conclusive of the case* By the express terms of the stipulation upon which the judgment of dismissal was entered in the suit of Engstrom v. Manhattan S. M. Company, the check of eight thousand dollars was ‘ ‘ deposited for safe keeping in the vault and safe of the treasurer of the state of Nevada, to be by him delivered to the said D. E. Norton and Frank G. Engstrom, upon the execution and delivery by them of a quit claim deed to * * * the Manhattan Silver Mining Company ” for that portion of the mining claims heretofore mentioned. The execution and delivery of this deed was a condition precedent to their right to the check or money. “A precedent condition must happen or be performed before the estate, right or interest to which it is annexed can vest or take effect.” Where no time is fixed within which a condition shall be performed, the rule is that it must be performed within a reasonable time. Where the condition is precedent it must, as a general rule, “ be strictly performed in every particular in order to entitle the party, whose duty it is to perform it, to enforce the contract against the other party.” (1 Story on Cont., secs. 47, 691; Dana v. King, 2 Pick. 155; Hunt v. Livermore, 5 Pick. 395; Johnson v. Reed, 9 Mass. 78.) ‘ ‘ In the case of a condition precedent — that is, where an act to be performed by the plaintiff' before the accruing of the defendant’s liability under his contract — the plaintiff must [416] aver in his declaration, and prove either his performance of such condition precedent, or an offer to perform it, which the defendant rejected, or he may aver his readiness to fulfill the-condition until the defendant discharged him from so doing,, or prevented the execution of the matter which was to be performed by him. (2 Chitty on Cont., 1083; Majors v. Hickman, 2 Bibb. 218; Livesey v. Omaha Hotel, 5 Neb. 50.) In an action for the breach of a contract containing mutual conditions, performance or readiness to perform must be averred by the plaintiff. (Darland v. Greenwood, 1 McCrary 337; Nelson v. Plimpton F. E. Co., 55 N. Y. 484.) Appellant has not brought himself, either by his pleading or proofs, within any of the exceptions to the general rule, as-above stated. He has not shown that the Manhattan company, by any of its acts, prevented Engstrom or Norton from, complying with the conditions expressed in the stipulation and judgment in the suit of Engstrom v. Manhattan S. M. Company. He has not offered any valid excuse for the non-performance of these conditions. The Manhattan company did not waive any of its legal rights by refusing to reopen the case. If it had gained any legal advantage by the laches of Engstrom and Norton, it was entitled to reap the benefits accruing therefrom. The mere fact that it bought the property at sheriff's sale — no fraud or collusion being alleged— constitutes no breach of any duty it owed to Engstrom or Norton. It was not bound to sit idly by and see the property bought in by others. It had the right to protect itself and to-take advantage of the conditions and circumstances surrounding the property. Even after the sale Engstrom and Norton could, at any time before the time of redemption expired, have tendered their quit-claim deed and demanded the check or money. They deliberately allowed the property to be sold and made no offer, within a reasonable time, to convey their interest therein to the Manhattan Silver Mining Company. By their own negligence they deprived themselves of all their right, title and interest in or to the check or money. Appellant has no rights in the premises except such as are derived by virtue of his' agreement with Engstrom. As Engstrom could not recover upon the facts, as plead and proven in [417] this case, it follows that appellant has no standing in court. The court did not err in refusing to “ allow plaintiff to show that the settlement was highly favorable to the Manhattan company.” This was immaterial. If the-acts covenanted to-be performed byEngstrom and Norton had been perforated, the Manhattan company could not have prevented a recovery by showing that the settlement was unfavorable to it. The respective parties would be bound by the terms of the settlement, whether favorable or unfavorable to them. The judgment of the district court is affirmed.