Wendlinger v. Smith

Burks, J., delivered the opinion of the court. The contract of June 26, 1873, between Goddin, as executor of Yial, of the one part and the appellant Wendlinger of the other, for the sale by the former to the latter of certain real estate in the city of Richmond, is the subject of controversy in this case. The contention in the court below was, by the executor that the contract was a valid subsisting obligation, and should be enforced, and by Wend-linger that it was subject to a condition which, never having been performed, the contract never took effect. By the decree appealed from the chancellor decided that the contract was binding on the parties, and that Wendlinger as purchaser should comply with the terms; in other words, the decree was substantially that the contract should be specifically performed. It is true, the decree does not proceed at once to carry the contract into execution, but it determines that it shall be done. This is a decree “ adjudicating the principles of the cause,” and though interlocutory, it may, under the statute, be brought here for review without awaiting a final decree in the cause. Code of 1873, ch. 178, § 2. — 314 — The objection therefore of the learned counsel of the appellees that the appeal is premature, cannot be maintained. The decree is based on the opinion of the chancellor expressed that the contract “ is absolute on its face, and was and is not dependent upon the assent of the devisees of S. P. Vial, deceased; and that it is incompetent to admit parol testimony for the purpose of altering said contract ”; and therefore the deposition of Pobert G. Scott and the statement of Goddin, which were excepted to, were excluded as evidence. If the excluded evidence was in law admissible, it seems quite clear to us that it was error to decree that the covenant of 1873 should be carried into execution, as a subsisting contract binding on the parties. This evidence (without meaning to state it in detail) shows very satisfactorily that the contract for the sale of the property was conditional. It was to be effectual if, and not unless and until the devisees of Vial should approve and ratify it in writing; and it is not- claimed that such approval and ratification by all the devisees were ever secured. Mr. Scott was Wendlinger’s counsel, and he raised the question whether Goddin as executor had the right to sell and convey the property under Vial’s will; and he says he recollects that to remove this difficulty, it was agreed between Wendlinger and the executor, that the consent of the parties interested, the devisees under the will of Vial, to the contract for the sale of the property, should ■ be given in writing. Not long after this Wendlinger was informed by Goddin’s clerk that the signatures of some of the devisees to the written assent to the sale could not be obtained—that they had refused to sign it; and thereupon Scott, as the legal adviser of Wendlinger, counseled him not to take the property, &c. The statements of Scott are strengthened by facts and circumstances made to appear by other evidence, not ex-eepted to, in the cause. — 315 — In the first place, the writing appended to the covenant in 1873, in the possession of Goddin, would seem to indicate that something remained to be done to give effect to the covenant as a completed obligation. The writing is immediately below the signatures to the covenant, and is in form and of the terms following: “ We, the undersigned devisees under the will of the late Seymour P. Vial, deceased, do hereby ratify, approve and confirm the foregoing contract. “ Witness the following signatures and seals. “Wm. S. Bailey. [Seal.] “Virginia M. Bailey. [Seal.] “ J. B. Ezell, [Seal.] “ Mary O. Ezell. [Seal.] “--—. [Seal.] «--. [Seal.] “---. [Seal.] “--. [Seal.] “--. [Seal.] ” Then, the conduct of the parties after the contract was entered into, tends strongly to show that it was regarded by them of no continuing binding force. If effectual, it is conceded that the lease of May 2, 1865, was in that case wholly superseded. And yet, Wendlinger continued to pay and Goddin to receive rent under that lease until sometime in the year 1875, when the present controversy arose, and moreover, in the meantime, no interest was demanded or paid on the purchase money for the lot alleged to be sold to Wendlinger, though such interest was accruing from time to time under the covenant, if operative. Again, the unsuccessful negotiations for the sale between Goddin and Wendlinger in April, 1875, seem to be wholly inconsistent — 316 — ■with a previous and then subsisting contract for sale under the instrument of June 26, 1873. So, we think, the facts and circumstances in this case, independently of the evidence excluded by the chancellor, give strong support to the appellant’s claim, that the covenant of 1873 was upon a condition precedent to be performed by Goddin, which was never performed by him, and the contract therefore never took effect—that it was in fact wholly imperative. If, however, the excluded evidence be admitted, we are of opinion, that the existence of the alleged condition and its non-fulfillment by Goddin, is abundantly proved. Whether, therefore, this evidence was admissible, is the only remaining question to be decided; and we are of opinion, that it was admissible, and that the learned chancellor below erred in excluding and disregarding it. It was not offered with the view to contradict, or vary, or even explain the language employed in the written instrument, but to establish a fact or circumstance collateral to the writing, which would control its effect and operation, as a binding engagement. The body of the covenant, in its terms, is plain enough, and it is absolute, but the writing annexed "or appended is presumably a part of the instrument, to which it expressly refers, and manifests unequivocally the intention that all of the devisees of Vial should approve and ratify it. 1 Daniel on Reg. Inst. § 154, and cases cited in note (1), especially Fletcher v. Blodgett, 16 Verm. R. 26; Jones v. Tales, 4 Mass. 245. Whether this notification was to be a condition upon which the covenant should take effect and be binding on the parties, we are unable to determine with certainty from an inspection only of the writings, but, under the decisions of the court, the incompleteness of the instrument as a deed apparent on the face of it, taking the writing appended as a part of or connected with it, warrants the introduction of parol evidence to prove the317 «existence of such a condition. We need only refer to Hicks and others v. Goode, 12 Leigh, 479; Ward and others v. Churn, 18 Gratt. 801; Nash v. Fugate and others, 32 Gratt. 595. These cases establish the proposition, that the rule of law that a deed cannot be delivered to a party to whom it Is made as an escrow, to be the deed of the obligor only on condition, and that in such case the delivery is absolute .and the condition nugatory, is applicable only to the case -of deeds which are upon their face complete contracts, requiring nothing but delivery to make them perfect according to "the intention of the parties; not to deeds which, upon their .Jace, import that something more is to be done besides delivery to make them complete and perfect contracts according to the intention of the parties. In Nash v. Fugate and others (supra), the names of none of the contracting parties were inserted in the body of the bond, which was the subject of controversy. It was signed by the principal obligor and nine others claiming to be sureties. There was nothing in the form or language of the bond to indicate that other persons were to sign it before it could take effect as to the parties who had signed it. And it was held that the fact that there were scrolls to which there were no names, did not render the instrument incomplete, or even tend to show an agreement that other parties were to sign in order to give ■effect to the bond. But, in the present case, the writing appended to the covenant, in the possession of Goddin, shows clearly on its face an intention that all the devisees of Vial should, by signing the writing, declare their approval and ratification ■of the covenant. It is true, they are not mentioned by their names in the body of the writing; but, with as much certainty as if particularly named, they are described collectively as “the undersigned devisees under the will of the late .Seymour P. Vial,” and corresponding scrolls were subjoined to which their signatures were to be prefixed. According — 318 — to the authorities which have been cited, it was perfectly competent for Wendlinger to prove, as he offered to do, by parol evidence, that he delivered this covenant to Goddin to take effect only on condition that all of the devisees of Yial should give their written assent to the covenant, as the writing shows was contemplated. See also what was said by Judge Daniel in Smith’s Ex’or v. Spiller, 10 Graft. 318, 324. The view we have taken of this case makes it unnecessary to consider other grounds, plausible and of much force, upon which the learned counsel of the appellant contended that the evidence excluded by the chancellor should have been received and considered. Dor the reasons stated, we are of opinion that the decree of the chancery court of the city of Richmond is erroneous, and should be reversed, and the cause remanded for further proceedings. The decree was as follows: This day came again the parties, by their counsel, and the court, having maturely considered the transcript of the record of the decrees aforesaid and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the deposition of Robert G. Scott and the statement of Wellington Goddin were improperly excluded by the said decree as evidence in this Cause, and that it is proved by this and other evidence in the cause, that the covenant of June 26,1873, in the proceedings mentioned, was sealed and delivered to take effect on condition that it should be approved and ratified by all of the devisees of Seymour P. Yial, deceased; and the said condition never having been fulfilled, the said covenant never took effect as a completed obligation binding on the parties, and was and is inoperative, and therefore should not be — 319 — carried into execution as a subsisting contract, and the said decree is wholly erroneous; therefore, it is decreed and ordered, that the said decree be reversed and annulled, and that the appellant recover against the appellee Wellington Goddin, as executor of Seymour P. Vial, deceased, his costs by him expended in the prosecution of his appeal aforesaid here, to be levied of the goods and chattels of the said decedent in the hands of the said executor to be administered ; and this cause is remanded to the said chancery court for further proceedings to be had therein, in order to final decree, in conformity with the opinion and principles hereinbefore expressed and declared; which is ordered to be certified to the said chancery court of the city of Eichmond. Decree reversed.