Brashear v. M'Masters

Bullard, J., delivered the opinion of the court. The defendants, being sued on their promissory note, pléaded that it was given as the price of certain land, which the plaintiff and one Warfield had bound themselves to convey to the respondents and others, but which agreement was, in itself, incomplete and not binding on them, and that the plaintiff had not performed, on his part, what he was bound to do, and that, consequently, the consideration has failed, and the plaintiff not entitled to recovery. They claim the right of receding from the incomplete agreement, and that the note may be cancelled and annulled. The agreement under private signature referred to in the answer, was given in evidence, and sufficiently proves, in our opinion, that the note was given for the consideration alleged. It remains only to inquire whether that consideration was valid, and, if so, whether it has failed. The subscribers to that instrument bind themselves for the sums affixed to their names severally, and to give their bonds for the same, payable on the first day of January, 1838. The plaintiffs, together with Warfield, acting as agent for certain other persons, stipulate on their part to convey to the subscribers, in their just proportions, a tract of land on Berwick’s Bay, called the Golden Farm, to be laid out into town lots, on such terms and conditions as a majority of the subscribers might determine on, and which is estimated, in an act before Boswell, notary, at fifty thousand dollars. The whole amount does not appear to have been subscribed. In contracts containing reciprocal obligations, the party bound to convey, must convey, or show his readiness and ability to perform his part of the contract, before he can compel the other to pay the price. We leave out of view the contract passed before Boswell, because the defendants were not parties to it; and although it creates obligations in relation to the laying out of a town on Berwick’s Bay, of which the subscribers to the contract under private signature might, perhaps, claim the performance; yet it is not necessary to inquire into it in this case. The consideration for which the note was given, was clearly a portion of the tract of land which the plaintiff, jointly with Warfield, promised to convey to the defendants; and the contract created reciprocal obligations. The plaintiff was bound to convey, and the defendants to pay their share. The latter cannot be compelled to perform their part of the contract, until the plaintiff shows his readiness and ability to perform his; aud there is no evidence before us that the defendants have been legally put in mora. The judgment of the District Court is, therefore, affirmed, with costs.