Barron v. Easton

Woodward, J. The errors assigned are based upon the matter of the demurrer. The first and third grounds of demurrer amount to the same thing. As to the second ground, that complainant has a complete remedy at -law, nothing is said to explain this, and show the'meaning of the party or his counsel. But it is presumed he means, an action for damages on- the bond. It is sufficient tó say, that when a party has two remedies given by law, he has his election, and cannot be compelled to take either one. Thus, on title bonds, or contracts to convey land, the party generally has a right to an action for damages for non-performance, or to a bill in chancery; to compel performance. And he cannot be driven to take the action for damages. The other grounds of demurrer resolve themselves into the one, that there is no privity between complainant and Burke, or his representatives. We will not undertake to say that the doctrine ■ of priority of contract scarcely holds • among us now; but certain it is, that its applicability is much less frequent under our law, than at common law. Our statute makes nearly every kind of contract assignable, so as to permit the assignee to maintain an action in his own name, saving of cpurse, the right of the obligor in respect to defence and set-off. This alone might, perhaps, cover the objection, but we do not stop to discuss the matter closely. It is here said further, that Easton made no contract with Barron. This alludes to the fact, that McCaddon executed the bond to complainant. In some manner of treating the subject, we would not omit to notice Easton’s letter to Mc-Caddon, and that the bond of the' latter recites that Barron had given his note to Easton. But the decree recovered by Barron against Easton, covers all this matter. It has been decreed'by a competent court, that Easton did contract with Barron, and that he convey the land to him. In the actual state of the case, the title still being in Burke, this amounts to a decree that he convey all his right, title, and interest. Thus there has been au assignment of the contract by judg [80] ment, if not otherwise; and Barron stands in the place of Easton, and can claim a performance of the contract. This view covers some of the points made in the argument, under the general objection, made in the demurrer, and they need not be noticed in detail. But it is urged that Burke’s agreement was upon a condition precedent, which Easton has not performed. The covenants are mutual and dependent, and neither is strictly a condition precedent.. It is true, that Easton could not claim a deed until he paid the money; but neither could Burke sue for the money, without tendering a deed. Burke might be still with safety, till Easton performed, whilst Easton must do something, in order to bring into being his right to claim a deed; but this does not make it properly a condition precedent. But, however this may be in strict correctness, the pei’formance of the act on the part of Easton, or his assignee, was prevented by the act of God in the death of Burke; and then, as soon as axx administrator is appointed, the money is tendered. According to the commonly accepted rules of law, this saves the forfeiture. The decree is affirmed.