McCullough v. Dawson

Blackford, J. — “ We must first examine the plea. The contract of the payees, as described in that plea was, that should the defend ant, or his legal representatives pay the notes as they should respect ively become due and payable, then, and in that case, the payees or their successors would convey the lots to the defendant, Ms heirs o 1 assigns, by a good and sufficient deed in fee simple with covenants of general warranty. The plea avers that neither the trustees nor their successors, had conveyed or offered to convey the lots, aecohl-ing to the tenor and effect of the agreement or otherwise, on or before the day the notes last due were payable. “ The plaintiffs contend that it was not necessary for them, under the contract stated in the plea, to offer the deed on the day just mentioned, but that the offer was sufficient, if made at any time before the commencement of the action. “The only difficulty in these cases is, to ascertain the meaning of ; * the parties. They may make their promises dependent or independ- •> ent, or they may make the promise of one party dependent and that; of the other independent. They may fix a day on which the con- ) tract shah be performed, or they may agree that its performance r shall be within a reasonable time. It has been considered, however,} at least in modern times* to be the safer course to construe promises > to be dependent, whenever the terms used will admit of such con- i struction. It is not to be supposed, that a purchaser intends to part» with the purchase money without receiving the property at the. time [249] ; of tbe payment, unless the language of his contract clearly evinces that intention. “ The contract before us means either the one or the other of these two things : First, that the notes should be paid when due, and the deed be made at some time afterwards ; or, Secondly, that the money should be punctually paid, and the deed be made at the same time with the payment of the last instalment, namely, on the 17th of October, 1838. “ The following are cases on this subject: There was a contract to make a title to a tract of land on or before a certain day, provided the last payment should be made before the deed was to be executed. The Court held that the money could be recovered, though the deed had not been made or tendered. Davis v. Heady, 7 Blackf. 261. So, in covenant by tbe vendor for the price of certain land, it appeared that the purchaser had agreed to pay the price in five years from the date of the contract, with interest annually, and pay the taxes on the land, and that the vendor had agreed that after the purchaser should have paid the above sums of principal and interest, at the time and in the manner above specified, and should have performed the agreement above mentioned, he would sell and convey the land to the defendant by a good and sufficient warranty deed. It was held that the suit lay, although a conveyance had not been made or tendered. Morris v. Sliter, 1 Denio, 59. “ In both these cases, by the express terms of the contract, the money was to be paid before the execution of tbe deed. But there are no such express terms in the present contract. Here the payees agreed, that should the defendant or his legal representatives pay the notes as they should respectively become due and payable, then and in that case, tbe payees or their successors would convey the lots to the defendant. The words as and then have various meanings. We think that in said agreement, the word as means at the same time that, and that the word then means at that time. The sentence in question may, therefore, be read as follows : Should the defendant or his legal representatives pay the notes at the same time that they respectively become due and payable, at that time, and in that case, the payees or their successors would convey the lots to the defendant. “ By the contract, thus read, the defendant was not bound to pay the last instalment at all events, and be left to Ms chance of after-wards getting the deed, or damages for its non-delivery. On the [250] contrary, the promise to pay the last instalment on the appointed day was a dependent promise — dependent on the defendant’s receiving a deed at the same time at which the payment should be made on that day. The acts of making that payment by the defendant, and of executing the deed by the trustees, were to be simultaneously performed on the specified day. In such cases the rule is already settled in this Court. The case of Cunningham v. Gwinn, (4 Blackf. 341), referred to by the defendant is as follows : The suit was on certain notes, assigned by the payee to the plaintiff, which were payable on a future day, and were given in consideration of certain real estate. At the time of giving the notes, as stated in the fifth and sixth pleas, the payee gave the purchaser a title-bond conditioned for a deed for the land as soon as the latter should pay for it, agreeably to the notes given for the amount. The Court said: ‘ We consider that the fifth and sixth pleas are valid. They state the note sued on to have been given in consideration of the land, and that, on payment of it, the deed was to be made. They then aver that no deed was made or offered to be made. This defence is sufficient according to the case of Leonard v. Bates, (1 Blackf. 172), and the authoiities there cited. If the assignor of the plaintiff failed, on the day, to perform or offer to perform, his part of the contract, and could show no legal excuse for the failure, the purchase money cannot and ought not to be recovered. Bank of Columbia v. Hagner, 1 Peter’s R. 455.’ Again, in Brumfield Palmer, (7 Blackf. 227), in chancery, two notes of 400 dollars each had been given for the unpaid purchase money of a town lot, purchased by the maker of the notes from the payee on the 25th of December, 1838. One of the notes was payable in one year and the other in two years. A title bond had been given by the vendor conditioned for a deed in two years upon payment in full of the purchase money. The Court said: ‘The legal effect of the contract under consideration was, at law, according to the repeated decisions of this Court, that the payment of the note for 400 dollars, the last instalment of the purchase money, and the delivery of the deed of conveyance, were to be simultaneous acts. The day for their performance was the 25th of December, 1840; and neither party could secure a recourse against the other for non-compliance, unless he had himself evinced a readiness to comply. As neither party took any steps on that day towards the performance of the contract, the remedy of both, at law, was forfeited; and either might have viewed the contract as re [251] scinded. But Courts of equity do not, generally, view lime as being of the essence of a contract, unless it appear from its terms, or by the conduct of the parties, that the design of the contractors was to render it essential. 2 Story’s Eq. 85; 1 Sugd, on Vend. 42(5.’ Brumfield v. Palmer, supra. “We are,therefore, of opinion, from the nature of the contract described in the plea, and the decisions of this Court to which we have referred, that to authorise the suit on the notes last due, the plaintiffs or their predecessors must have executed the deed on the day appointed for the payment of those notes, or have legally offered on that day to execute the deed. And as to the notes previously due, they stand on the same ground with the others, the suit on them not having been brought until after the time when the deed was to have been executed. Cunningham v. Gwinn, supra. “ It follows from this view of the case, that the defendant had a right to set up as a defence to the suit, that the deed had not been offered to be executed on the 17th of October, 1838, by the payees or their successors, on their being paid, at the same time, the unpaid purchase money. “ The plea in question avers, that neither the trustees nor their successors had conveyed the lots or either of them, or tendered or offered to make a deed for the same, to the defendant or his assigns, according to the tenor and effect of the agreement or otherwise, on or before the day the last named notes, payable in two years, be- < ame due and payable, that is to say, on the 17th of October, 1838. The word “otherwise” there used is mere surplusage, as it was incumbent on the payees or their successors, to offer the deed according to the contract and not otherwise. The plea would have been more formal if it had, in terms, denied that the payees or their successors had offered the deed on the specified day, on being at the same time paid the money due. The allegation, however, that neither the trustees nor their successors, had offered the deedaceoni-ing to the tenor and effect of the agreement, on or before, &c., is equivalent to saying that they had not legally offered the deed on the day; and it is, therefore, sufficient in substance. It is true, that in Burrows v. Yount, (6 Blackf. 458), an allegation similar to that before us was held bad on general demurrer; but we are now satisfied the objection in such ease is only as to the form. The allegation is not of a mere conclusion of law, but of law and fact together, and may be traversed. Lucas v. Nickells, 10 Bingh. 157; Ransford v. Copeland, [252] 6 Ad. & Ell. 482; Webb v. James, 7 Mees. & Welsb. 279; Hays v. Muir, and The State ex rel. Grimes v. Gresham, in this Court, Nov. Term, 1848. “ The replication to this plea does not allege the making of the deed on the 17th of October, 1838, or any offer to make it on that day; nor does it allege any matter of excuse for the failure. It cannot, therefore, be sustained. It relies on the tender of a deed on the 7th of August, 1844, nearly six years after the time fixed by the parties for the final performance of the contract. Such a tender is insufficient, as it is immaterial whether it was made or not. Suppose the defendant had, by a rejoinder, taken issue on this allegation of tender, and the issue had been found for the plaintiffs, they could not have had judgment on the verdict, because the fact found, namely, the tender of a deed in 1844, would not have shown that they were entitled to recover. Besides, the deed alleged in the replication to have been tendered, as shown on oyer, does not contain a covenant of general warranty. It is not such a deed, therefore, as, according to the plea, the vendors had agreed should be made. It may be that the vendors, in promising a warranty deed, exceeded their authority; but still they had a right to bind themselves personally, as they did do, that such a deed should be made, and the defendant has a right to show that the contract, in that respect has not been performed. “ Our opinion, therefore, being that the plea is good and the replication to it bad, the judgment for the defendant on his demurrer to the replication, must be affirmed.” Judgment affirmed, &c„