Powell v. Dayton, Sheridan & Grande Ronde R. R.

Waldo, C. J. This is an action brought by the vendor of real estate against the vendee for breach of a written^ contract to purchase the estate. 1. On the 1st day of July, 1878, the plaintiff leased the premises to the defendant for the term of five years, at the monthly rental of fifty-five dollars, and the lease contained the further provision, and the defendant agreed “to purchase of said Powell, and pay the said Powell, on or before the expiration of the said term of five years, the sum of $5,500 in United States gold coin, for all the said warehouse property,” etc. The plaintiff alleges that he made out and tendered a deed to the' defendant on the 10th day of November, 1883, and assuming thereby to have performed all conditions precedent on his part, claimed the entire purchase price. There is good authority for the position that in an action at law the vendor of real estate may recover the contract price if he shall make out and tender a deed at the proper time, and, it should seem, keep the tender good by bringing the deed into court. (1 Sedgw. Dam. 386, et seq.; Curran v. Rogers, 35 Mich. 221.) [489] Counsel for plaintiff did not urge tlie point, however, at the trial, and made no objection to the direction of the court to the jury, to the effect that the loss of the bargain was the measure of damages. The court also directed the jury that the washing away of the warehouse before the time for the performance of the contract had arrived did not affect the plaintiff’s right to recover, unless the loss happened through the plaintiff’s negligence. These instructions are alleged as error. The defendant’s counsel domot seem to have taken the position in the court below, that the destruction of the warehouse determined the contract. That, however, is the position here, and must be considered. In every contract for the conveyance of property, there is an implied condition that the subject-matter of the contract shall be in existence when the time for the performance of the contract arrives. That is the contract, the understanding of the parties. If it has ceased to exist when that time arrives, each party is discharged from his contract, the vendor from his contract to convey, the vendee from paying the purchase price. Hence the rule: “Whenproperty, real or personal, is destroyed by fire, the loss falls on the person who is the owner at the time; and if the owner of the house and land agrees to sell and convey it upon the payment of a certain price, which the purchaser agrees to pay, and before full payment the house is destroyed by accidental fire, so that the vendor cannot perform the agreement on his part, he cannot recover or retain any part of the purchase money.” (Wells v. Calnan, 107 Mass. 514; Gould v. Murch, 70 Me. 288; Thompson v. Gould, 20 Pick. 134; Taylor v. Caldwell, 3 Best & Smith, 826; Appleby v. Myers, Law R. 2 Com. P. 651; Dexter v. Norton, 47 N. Y. 62; Brumby & Smith, 3 Ala. 123, cited by counsel in Appleby v. Myers, supra. Several cases in equity were cited by the plaintiff’s counsel to show that the defendants were the equitable owners at the time of the loss. Under the terms of the contract this is very doubtful; but if it were trite, it would make no difference here, unless such an estate were recognized at law, which it is not. 2. The covenants in an agreement are dependent and concurrent where the act of each party is to be done at the same [490] time. A mere readiness to perform at such time is not sufficient, but the plaintiff must aver a tender of performance on his part. (Williams v. Healey, 3 Denio, 367; Johnson v. Wygant, 11 Wend. 49; Green v. Reynolds, 2 Johns. 207; Adams v. Williams, 2 Watts & S. 228.) The plaintiff has, indeed, made a tender of a deed, but not until long after the time fixed by the parties for the performance of the contract. The breach on the part of the defendant, if any, should have occurred at that time. The plaintiff has not the power to keep the contract open, and to tender a deed months after the 1st day of July, 1883, and then allege a breach as arising at the time of the tender. This would be to alter the terms of the contract. (Thompson, J., Bank of Columbia v. Hagner, 1 Peters, 465.) This point was made on the part of the defendant at the argument, though it seems to have been overlooked at the trial. As it must be fatal if the case comes again before the Circuit Court, it will be useless to direct a new trial. Judgment reversed.