Headley v. Shaw

Mr. Justice Bbeese delivered the opinion of the Court: This was an action of assumpsit brought in the Fulton Circuit Court, by Southworth Shaw, against Samuel Headley on two promissory notes. The plea was the general issue, and a special plea to which there was a demurrer and the demurrer sustained. The issue was tried by the court without a jury. It is on the second plea the main question is made. A preliminary question was raised on the evidence, which the court decided against the defendant. It was on the point of a variance between the note sued on and the one offered in evidence. The declaration alleges the note was made by the defendant, “by the name, style and description of Samuel Headley,” whereas the note offered in evidence was signed “ Samuel Headley, Jr.” The weight of authority seems to be that this is no variance. “Jr.” added to a person’s name, is no part of the name. Kincaid v. Howe, 10 Mass. 203; Commonwealth v. Perkins, 1 Pick. 388. The material point made by plaintiff in error is, that the note and agreement to convey are but parts of one entire contract, and are mutual and dependent, and when the time for paying the last installment has expired, the obligations to pay the money and make the deed are mutual and concurrent. From this it follows that the party who insists upon a performance from the other side, must show a performance on his own part, while he who wishes to rescind the contract, need only show non-performance, or an inability to perform by the other party. This court said, in the case of Runkle et al. v. Johnson et al., 30 Ill. 328, which was a case where time was of the essence: “When the vendor delays his action until the last payment is due on a land contract, the obligations under the contract become mutual and dependent, and the acts to be done in its execution are simultaneous. The party, then, who insists upon the performance by the other party, must show a performance on his own part, while he who desires to rescind the contract, need only show non-performance, or an inability to perform by the other party,” referring to Doyle v. Teas, 4 Scam. 265. The case of Cunningham v. Gwinn, 4 Blackf. 341, is to the same effect, though the question came up on a demurrer to the replication. So in Duncan v. Charles, 4 Scam. 561, this court said, when, upon a sale of a lot of land, a bond is executed for a warranty deed, upon the .payment of the purchase-money, which is secured to be paid by notes payable in one, two or three years, if the first two notes are paid, the payment of- the last note and the conveyance of the land are mutual and dependent acts. And we said, an action might be maintained upon the first two notes, but not upon the last, without a tender of a deed, for the reason that the agreement to pay the first note was independent, hut the agreement, to pay the last note, and of the plaintiff to execute and deliver a deed, were mutually dependent and conditional. To the same effect, is the case of Johnson v. Wygant, 11 Wend. 49, and the case of Kane v. Hood, 13 Pick. 281. A-party contracting to execute and deliver a deed, is hound to prejpare the deed, if there be no agreement it shall be prepared by the other party, and the vendor must tender it to the vendee before he can demand the purchase-money. This seems to be the rule as established in all courts of law in this country. The defendant in error denies that these were mutual and concurrent acts, and insists that by the force and effect of the terms of the contract, it is the entire performance by Headley of his covenant that entitles him to a deed, and that this performance, in respect to each of these covenants, is a condition precedent. That a party can make such contracts is unquestionable, and settled by the cases referred to, of Chrisman v. Miller, 21 Ill. 235, and the other cases. In the view of defendant in error the form of this agreement is unlike those in general use for the sale of land. They usually provide for the making of a deed on the payment of the purchase-money. In such case he admits that the payment of the last installment and the making the deed, are mutual and dependent acts, and that neither party can insist upon performance by the other without performing, or being ready and offering to perform, himself. But, he says, in this case other, things than purchase-money are embraced in Headley’s covenants. He covenants for three things: First, to pay $143.50 on the 1st day of January, 1861; second, to pay the same amount on the 1st day of January, 1862; third, to pay all taxes on the land from January, 1859, the contract being dated on the 16th of June, 1859. He contends, as the plea does not show he paid the note due January 1, 1861, nor the taxes, his claim is that he is entitled to a deed on the single payment of the note due January 1, 1862, and without payment of the taxes, that the effect of his plea would be to entitle him to a deed on the performance of one of his covenants, that is, the payment of the note last due. As we understand this contract, the payment of the last note and the making the deed were dependent and concurrent acts. The payment of the last note was the last act to be performed by the vendee in which the vendor had any conceivable interest. The payment of the taxes then due was a matter in which the vendor had no concern, and they could not have been regarded as important by the parties, as the deed defendant in error was to execute was to be a mere quitclaim, with no covenant against liens for taxes. The current of authority runs strong in favor of the views we have presented, and the case of Runkle v. Johnson, 30 Ill. 328, above cited, cannot be distinguished from this. There time was of the essence of the condition, and the question of a tender of the deed was directly presented by the pleadings. We are of opinion the demurrer to the plea should have been overruled, as it presented a good defense to the action. The judgment of the court below is reversed and the cause remanded. Judgment reversed.