Ragan v. Gaither

Dorsey, J., delivered the opinion of the court. The defendant in this case pleaded three several pleas. The first of which tendered the issue which was tried by the jury. The two latter concluded with a verification, and the benefit thereof was waived by him, he having gonfe to' trial without [487] requiring any replication thereto, or causing any issue to- be joined thereon. The jury haring rendered a verdict for the plaintiff, the defendant moved in arrest of judgment, on account of certain alleged defects in the plaintiff’s declaration, to none of which does it appear to be obnoxious. The first reason assigned for arresting the judgment is, that the plaintiff below' has not show'n a sufficient ground of action in his declaration. We think the declaration does set out a cause of action, sufficient after verdict to warrant the rendering of a judgment thereon. It states according to both its tenor and effect, the agreement between the parties. It alleges' that the plaintiff had at all times been ready and willing to execute and deliver a good and sufficient deed for the property sold, according to the agreement; and that the plaintiff did execute such a deed, and offer to deliver it to the defendant below, and to clear the property of all incumbrances, if the defendant would pay to the plaintiff the purchase money stipulated in the agreement; and that the defendant wholly refused so to do. It is true that the plaintiff does not in express terms make the usual allegation of his seizin in fee of the property sold, hut he charges what after verdict, even if not before, is a sufficient averment of seizin. He states that he was at all times ready to execute, and that he did execute and offer to deliver a good and sufficient deed for said property before the present action was instituted. To sustain this averment before the jury, the plaintiff must have proved that he was seized in fee of the property, or it was impossible that he could have been ready to execute a good and sufficient deed for its conveyance. On a motion in arrest of judgment, the verdict will he supported by every fair legal intendment, and the court will assume that every thing was proved, of which it is necessary for the plaintiff to have offered proof to establish the truth of the allegations contained in his declaration. The other reasons assigned in arrest of judgment are, that the plaintiff “has not averred a performar.ee of the contract “on his part, nor has he averred a positive offer to perform, “which the defendant refused, hindered, or discharged him [488] “from doing.” That “it is not slated that defendant refused to accept a deed,” or “that he would not have accepted a deed if one had been tendered; nor is it averred that plaintiff had paid off incumbrances, or that he offered to pay them off, and defendant hindered or discharged him from his obligation to do so, nor is there any other sufficient excuse, averred in the non-performance of the conditions and stipulations on the part of the plaintiff to be performed.” There is nothing in any of these reasons which would have authorised the court to arrest the judgment. There is nothing in the contract of the parties requiring the plaintiff to make an averment of performance, or a positive, or unconditional offer of performance on his part. By the terms of the agreement the payment of the purchase money, and conveyance of the properly, were to be acts of concurrent performance. The seven hundred dollars were to be paid on a good and sufficient deed being given. The declaration alleges an offer by the plaintiff to the defendant of a good and sufficient deed of conveyance, clear of all incumbrances, on condition of the purchase money being paid by the latter to the former; and that the defendant refused to accept the order. The pavement required by the contract having been completed, and the aforesaid offer and refusal having been also distinctly stated in the declaration, no further performance, or offer of performance need be alleged, to enable the plaintiff to prosecute the present action, or to sustain the verdict which has been rendered by the jury. The county court therefore correctly overruled the motion in arrest of judgment. The opinion of the court as set forth in the first bill of exceptions, it is alleged, is erroneous,' because it refused to instruct the jury, that if they found the title in the property had not been conveyed, nor possession thereof delivered to the defendant below, but that both title and possession remained in the appellee, as at the date of the contract, that the plaintiff below was only entitled to recover the depreciation of the value of the property sold; and that a recovery of the whole purchase money could only be effected by a bill in equity for a [489] specific performance of the contract — and as an authority to that effect, Sugden on Vendors, 164, was referred to. But the reference does not sustain the principle which it was offered to establish. It states that “if either vendor or vendee, refused “to perform the contract, the other may bring an action for “breach of contract, or file a bill for a specific performance; “although it appears to have been formerly thought, that as the “vendor only wants the purchase money, his remedy was at “law.” Thus clearly intimating, that in an action at law, where the vendee refuses to perform the contract, a recovery could be had against him for the whole of the purchase money. The opinion of the county court however is erroneous upon a different ground. Instead of submitting the verity of the facts to the finding of the jury, it assumed their truth, and peremptorily instructed the jury, “that upon the aforegoing statement of facts, the plaintiff is entitled to recover the whole amount of the purchase money.” We cannot upon the first bill of exceptions affirm the judgment of the county court upon another ground. The two deeds which show the appellees offer of performance of his part of the contract, are left out of the bill of exceptions, and this court are consequently incompetent to say, that the court below was warranted in giving such an instruction, had it even left to the finding of the jury, the truth of the statement of facts upon which their opinion was based. But the opinion of the county court is erroneous on a yet more important ground. According to the testimony in the cause, it not only did not appear, that the appellee was seized in fee, clear of incumbrances, of the land for the purchase money whereof the suit was instituted; but the fact was, that the fee simple estate was in a third person; the appellee holding nothing but an equitable interest subject to an incumbrance. In such a case he could not only, not recover damages on account of the depreciation of the property sold, but he could recover nothing, not possessing such a title as he had stipulated to convey on receipt of the purchase money. To maintain the present action the appellee must at least prove at the trial that he [490] is seized of such an estate, as by his contract he stipulated to convey. 2 Phil. Evid. 63. Thompson vs. Miles, 1 Esp. N. P. Ca. 184. The second bill of exceptions has been abandoned. We think the court below was right in refusing the defendant’s prayer in the third bill of exceptions, for an instruction* to the jury, that if they believe from the testimony the plaintiff had neglected to perform his contract for an unreasonable time:, the defendant had a right to rescind his contract, and if they believe the defendant had rescinded the contract, or the plaintiff on.the request of the defendant refused to perform his contract, the offer of the deed could not revive it, and they must find for the defendant. It called upon the court to submit to* l the jury the finding of a matter of law, which it was the pro- j vince of the court, and not the jury to decide, what length of j time in neglecting to perform a contract, is unreasonable, and ) would authorise its re-scission, at the will of the party com- S plaining of such neglect, is a matter of law to be determined^ by the court, and not by the jury. The county court therefore correctly refused to submit the determination of that question of the jury. But it committed the same errors in its opinion given to the jury in this biff of exception, which we have imputed to its opinion in the first bill of exceptions. Dissenting from the opinions given by the county court in the first and third bill of exceptions. JUDGMENT REVERSED AND PROCEDENDO AWARDED’.