Manistee Lumber Co. v. Union National Bank

Mr. Justice Magruder delivered the opinion of the Court: We think, that the Appellate Court properly reversed the judgment of the trial court, because of the refusal of the latter court to hold as law the first of plaintiff’s refused propositions. The proper construction of the language of the contract is, that the Bank was to receive the stock at the same time, at which it should make its tender of $11,700.00. The words, “on or before the first day of May, 1889,” qualify the verb, “receive,” as well as the noun, “tender.” The Bank was not only to tender the money .on or before the first day of May, 1889, but was also to receive the stock on or before that day. It was contemplated, that the tender of the money and the receipt of the stock should be concurrent acts. If the Bank was obliged to tender the money on or before May 1, 1889, whether the proposed corporation was then organized or not, an acceptance of the tender by the defendants would have placed the bank at their mercy, because they may not have chosen to organize the corporation, or to deliver the'stock, for an indefinite time in the future. Indeed, it is conceded 'that the corporation was not organized until after the beginning of this suit. It is not denied by appellants, that they were unable to deliver the stock on or before May 1, 1889, or at any time before February, 1890. As the appellee knew that the appellants had not organized the corporation and could not deliver the stock on May 1, 1889, it was not obliged to make the tender on that day. “It is a good defence to an action on the contract, that the obligation to perform the act required, was dependent upon some other thing which the other party was to do, and has failed to do. And if before the one party has done anything, it is ascertained that the other party will not be able to do that which he has undertaken to do, this will be a sufficient reason why the first party should do nothing.” (2 Pars, on Cont. 675). Where the agreement requires the acts of both parties to be done at the same time, one is not obliged to perform his part before the other. (Smith v. Lewis, 26 Conn. 109). The word, “tender,” as applied to the case of mutual and concurrent promises, means readiness and willingness to perform, provided the other party is ready and willing to perform. (Clark v. Weis, 87 Ill. 438.) The correspondence shows, that the appellee was willing to waive the failure of the appellants to organize the corporation as early as May 1, 1889, and to pay the $11,700.00 in exchange for stock as late as June 28, 1889. But the letter written by the appellants on July 1, 1889, amounted to an absolute refusal to deliver the stock at any time. That letter takes the ground, that appellants were released from all liability because appellee did not tender the money on or before May 1, 1889, although appellants do not claim that they were then able to deliver stock, or had taken any steps to organize a corporation. We are unable to concur in the construction placed upon the contract by the appellants. Appellee assigned its claim to the appellants, upon the express condition, that it was to have stock to the amount of $11,700.00 in the proposed corporation. When, therefore, appellants denied their liability to deliver the stock at any time, the condition failed and the assignment was without ^consideration. A right of action then arose in favor of appellee to recover the dividends upon its claim, which appellants had collected from the receivers, as so much money had and received to its use, less the $11,700.00 already paid. But independently of this right of action upon the common counts, the last clause of the contract provided, that appellants should pay over the dividends, if they should “fail to acquire said property and assets.” The words, “fail to acquire said property and assets,” construed in connection with all the other phraseology of the agreement, evidently mean a failure to •acquire said property and assets as the property of the proposed corporation, whose stock was to be delivered to appellee. It cannot be said, that appellants would not be bound to pay •over the dividends to appellee, if they had acquired the property and assets of the insolvent corporation for themselves and without transferring such property and assets to the proposed new corporation. The payment of the dividends is imposed as a penalty for the failure to do what would be of benefit to appellee, but the acquirement of the property and assets by the appellants could have been of no benefit to appellee, unless said property and assets were transferred to the new corporation as a basis for issuing the stock in question. We therefore think, that a right of action for the amount of the dividends accrued to the appellee under the contract because appellants failed to acquire said property and assets in the manner and for the purposes contemplated by the contract, namely, for the purpose of transferring such property and assets to the proposed corporation, and for the further purpose of issuing stock in such corporation to appellee. It appears from the facts found, that appellants did not acquire all the property of the insolvent corporation, and that they sold a part of the property, which they did acquire, for $190,-000.00 and failed to put it into the new corporation. We do not wish to be understood as deciding upon the-validity or invalidity of the arrangement for a syndicate entered into by a national bank, and other corporations and individuals, as referred to in the agreement. As this question-is not discussed by counsel on either side, we have not con-sidered it. The only question, which remains, is as to the power of the Appellate Court to enter a judgment for the plaintiff after reversing the judgment entered by the trial court for the defendants. Where the trial has been by agreement before the court, without a jury, resulting in a judgment for the defendant, the Appellate court may not only reverse, but may also render judgment for the plaintiff, if the law, as applied to the facts found by that court necessitates such a judgment, and if it can-be ascertained from the facts so found what judgment ought, to have been rendered by the court below. (Prince v. Lamb, Breese, 378; Wilmans v. Bank of Illinois, 1 Gilm. 667; Commercial Ins. Co. v. Scammon, 123 Ill. 601; Commercial Union-Assurance Co. v. Scammon, 126 id. 355). In the case at bar, the trial was before the court without a jury by agreement. The Appellate Court has made a full reci-; tation in its judgment of the facts found by it. Among the facts so found are the following: 1. that the appellee did not make a tender of the money on or before May 1, 1889 ; 2. that the appellants had not acquired the property and assets of the insolvent corporation, nor had they organized the proposed new corporation, nor were they prepared to deliver the stock, on or before May 1, 1889; 3. that, on duly 1, 1889, appellants wrote a letter to appellee declining to have any further business with it, or, in other words, to deliver the stock to it, upon the sole ground that it had not made a tender of the money on or before May 1, 1889; 4. that neither on July 1, 1889, nor at any time before the beginning of this suit, had appellants organized the proposed corporation. An application of the law to the facts thus found, leads to the conclusion, that the appellee was entitled to rescind the assignment of its claim, and to recover the dividends thereon, theretofore collected by the appellants. From the facts found, a judgment for the plaintiff follows as a necessary consequence, in view of the construction already given to the contract. The result could not have been different, if the cause had been remanded to the trial court. The amount of the judgment could be readily ascertained by deducting the sum paid from the amount of the dividends already received. The present ease manifestly belongs to that class of cases, where the Appellate Court is authorized not only to reverse the trial court, but also itself to render judgment. (Ins Co. v. Scammon, supra). The judgment of the Appellate Court is therefore affirmed. Judgment affirmed.