Walker v. Hewitt

McBBIDE, C. J. The main question under discussion here is whether or not the plaintiff can maintain this action without first tendering a deed to the property described in the contract. The answer to this contention is that, by giving a negotiable promissory note, defendant in the first instance elected to rely upon the responsibility of the seller as a means of compelling him to execute his part of the contract. It is not the frequent case of an action upon a contract of sale of real estate where the mutual covenants of the parties are contained in the same instrument. Such a contract, while assignable, is not negotiable. The giving of a negotiable promissory note for the purchase price, even at the time of exe — 375 — cution of the contract, is an independent covenant; whether failure to pay it at maturity so alters its effect that it becomes a dependent covenant will be considered hereafter. It is clear to the mind of the writer that in either view the plaintiff was not required, as a matter of pleading, to declare on the contract, but on the note, and that, if the matters set up in the defendant’s separate answer have any efficacy whatever, they must, as a matter of pleading, be set forth defensively or in abatement. The first defense pleaded in the answer is a denial of the execution of the note sued upon. The second attempted defense substantially admits the execution of the note, but claims that it was executed as a part of the contract heretofore quoted and that the contract to execute the deed and the promissory note were dependent covenants, which is stating a mere conclusion of law, as both instruments speak for themselves. The allegation in paragraph 5 of the “first further and separate amended answer,” that plaintiff at the time of the commencement of this action could not convey to defendant the real property described in the contract of sale, is a mere legal conclusion, not the statement of a fact. The further allegation that plaintiff has failed so to convey has some of the elements of a plea in abatement, but whether pleaded in abatement or in bar does not appear. The same may be said of the second further defense. It is alleged, in substance, that plaintiff did not, before the commencement of this action, tender to defendant the deed called for in the contract of sale, and that he was unable to do so; that subsequent to the filing of this action he tendered a purported conveyance into court, to which defendant objected for — 376 — the reason that such tender was made after the action was brought, and for the further reason that at the time of the commencement of this action or at the time said conveyance was required by the contract, or otherwise, plaintiff was not able to make such conveyance of the property by warranty deed, in fee simple, clear of all encumbrances. Here, again, it does not appear whether the defendant is attempting to plead these facts in bar or in abatement. Pleas in abatement are expressly recognized by our Code: 1 Olson’s Or. L., p. 269, § 74. And, except that the section referred to allows such matter to be pleaded in the same answer with pleas to the merits, our statute has made no change in the requisites of such pleas at common law. One of these requisites is that the plea must be absolutely certain. It is a dilatory plea and not favored in law. “ * * The criterion or leading distinction between a plea in abatement and a plea in bar is, that the former must not only point out the plaintiff’s error, but must show him how it may be corrected, and furnish him with the materials for avoiding the same mistake in another suit in regard to the same cause of action; or in technical language it must give plaintiff a better writ. * * ” 1 Ohitty on Pleadings, pp. 462, 463; Settle v. Settle, 10 Humph. (Tenn.) 504; Mandel v. Peet, 18 Ark. 236. The plea here does not do this. It does not allege a state of facts, pursuant to which plaintiff might maintain his cause by tendering a deed before bringing another action, but, on the contrary, asserts in substance that it was impossible for plaintiff to have made a conveyance of the character required by the contract, and does not conclude with a prayer that plaintiff’s action abate. The general prayer at the end of the complaint is the usual one in — 377 — bar, that plaintiff’s action be dismissed and that defendant recover costs. While Section 74, supra, permits pleas in abatement and pleas in bar to be joined in the same answer, it has not attempted to dispense with the necessary rule that a plea in abatement should be completed in itself, and that it should demand a judgment of abatement, which this plea does not do: Jenkins v. Pepoon, 2 Johns. Cas. (N. Y.) 312. But, aside from the mere technical objection to the form of the plea, we hold that it is defective in substance for the reason that by the very terms of the contract of sale the payment and the making of the deed were not concurrent acts, but, on the contrary, payment was to precede the execution of the conveyance. The contract recites “that if the party of the second part [the defendant] .shall first make payment,” etc. While there is some contradiction in the authorities, we are inclined to follow those which hold that the word “first,” as here used, should be given its ordinary meaning, and that payment should precede the execution of the conveyance, especially where, as in this case, a negotiable promissory note is given for the deferred payments. This was so held in an early English case reported in 2 Barnewall & Adolphus, 74, where practically the same question was presented, Lord Tenterden, C. J., saying: “Where, by one and the same instrument, a sum of money is agreed to be paid by one party, and a conveyance of an estate to be at the same time executed by the other, the payment of the money and the execution of the conveyance may very properly be considered concurrent acts, and in that case no action can be maintained by the vendor to recover the money until he executes or offers' to execute a — 378 — conveyance; but here the vendee by a distinct instrument agreed to pay part of the purchase money on the 2d of February. I can see no reason why he should have executed a distinct instrument whereby he promised to pay a part of the purchase-money on a particular day, unless it was intended that he should pay the money on that day at all events. In the cases cited, the concurrent acts were stipulated for in the same instrument: (a) here the payment of the 200 pounds (which was part only of the purchase money) was separately provided for.” To like effect is Loud v. Pomona Land & Water Co., 153 U. S. 564, 577 (38 L. Ed. 822, 14 Sup. Ct. Rep, 928, 932, see, also, Rose’s U. S. Notes), in which the court used the following language: “In this case there is no ambiguity in the language of the contracts. The covenant and agreement of the land company is that ‘after the making of the payment and full performance of the covenants hereinafter to be made and performed by the party of the second part (Loud), the party of the first part (the land company) will, in consideration thereof, convey by deed of grant, bargain, and sale to the party of the second part, his heirs or assigns,’ the described lands, together with the designated shares in the irrigation companies. A subsequent clause of the contract provides that ‘this instrument is not and shall not be construed as a conveyance, equitable or otherwise, and until the delivery of the final deed of conveyance, or tender of all payments precedent thereto, the party of the second part, his heirs or assigns, shall have no title, equitable or otherwise, to said premises,’ and it is further provided that time is of the essence of the contract.” This is an instructive case and sums up all the American authorities on the subject up to the date of the opinion, which was rendered in 1893, and which is so logical and in accord with the language of the — 379 — contract that we are disposed to follow it here. To like effect see Gale v. Best, 20 Wis. 48; Mayers v. Rogers, 5 Ark. 417; Stuyvesant v. Western Mortgage Co., 22 Colo. 28 (43 Pac. 144); Woods v. Morgan, 1 Morr. (Iowa) 179; Hawley v. Bingham, 6 Or. 76; Sayre v. Mohney, 35 Or. 141 (56 Pac. 526). In the latter case the court lays stress on the fact that the vendee received possession of the property as bearing upon the question as to whether or not the covenant to p'ay and the covenant to convey were to be construed as independent covenants. In the case at bar the defendant was, by the legal construction of the contract, entitled to the immediate possession of the property, inasmuch as the contract contained a clause providing for re-entry by the vendor in case of default: 39 Cyc. 1621, and notes. Very respectable authority may be found holding views contrary to those above expressed, notably Underwood v. Tew, 7 Wash. 297 (34 Pac. 1100); Hogan v. Kyle, 7 Wash. 595 (35 Pac. 399, 38 Am. St. Rep. 910). Stein v. Waddell, 37 Wash. 634 (80 Pac. 184), is also cited by appellant, but the conditions there were different. Stein had brought a suit to declare a forfeiture of a contract of sale on account of nonpayment of installments of the purchase price, and did not allege a tender of a conveyance before suit. Forfeiture being a harsh remedy and not favored by the law, the court held that he should have made such tender before bringing his suit. It was incidentally remarked that the usual rule in such contracts was that the covenant to pay and the covenant to convey were dependent covenants, unless the terms of the contract clearly indicated the contrary, and that they attached little importance to the words “shall first pay” used in the covenant — 380 — of tlie vendee. What they would have held in a ease where the vendee had given a negotiable promissory note for the purchase price and gone into possession of the property, as indicating the intention of the parties, does not appear because it was not in that case. The object of language is not to conceal ideas, but to express, and where an instrument provides that one party shall first pay in order to be entitled to a deed it is logical to conclude, in the absence of other qualifying language, that it is intended that the payment must precede the giving of the deed. The word “first” does not mean “coincident with,” or “at the same moment,” either in law or logic. As the case stands here, the document pleaded by defendant says to defendant, in effect: “You must first pay the price evidenced by the note, and when that is paid plaintiff must make a deed.” But defendant would have us construe this language so that the first thing to be done or tendered is the deed. It would seem that before defendant can be allowed to urge this defense to an action on a promissory note he should be required to plead that he has paid or offered to pay, or is ready and willing to perform his part of a plain agreement, or show some valid reason why he should not do so. Merely stating the conclusion of law, that plaintiff is “not able” to make the deed means nothing, — no legal reason why he is not able appearing. We are unable to accept the reasoning of some of the courts that a covenant to pay, even if originally independent, becomes by some mysterious alchemy of the law dependent if the vendor allows the installments to run without collection until the last one is due. It is clearly opposed to the cases cited by us, including Loud v. Pomona Land & Water — 381 — Co., supra, and ought never to be applied where the vendee has given a negotiable promissory note for the whole purchase price, thereby indicating his intention to make an independent contract in respect to the payment. The judgment is affirmed. Affirmed. Bean, Brown and McCourt, JJ., concur. Burnett, J., took no part in the decision of this case.