Keefer v. Zimmerman

JRowik, C. J., delivered the opinion of this Court. The appellees sued the appellant, on the 25th of November 1859, on an agreement under seal, dated the 15th October 1846, wherein the appellant covenanted to pay for certain tracts of land §538, to be paid as follows, viz: “fifty dollars to be paid on the first day of April 1847, and one hundred annually thereafter, until paid, with interest from the date above mentioned; at the time of last payment, said Zimmerman binds himself, his heirs, &c., to make a deed of conveyance, warranting and defending the same unto sa^d Keefer, his heirs, &c., as soon as the whole amount of money is paid; the original papers and patents to be procured and delivered to said Keefer at the time of the last payment, and full and free possession given immediately after this date; said Keefer to give bonds for the yearly payments unto said Zimmerman for the faithful performance of the several covenants.” The parties bound themselves in tbe penal sum of eight hundred dollars. The nar. contained two counts, the first, setting forth as breaches, the non-payment of several instalments of the purchase money, with interest from the date of the agreement: the second, charging the interest from the 1st of April 1847, instead of from the date of the agreement, as in the first count. To these the 'appellant pleaded eight — 284 — pleas. Issues were joined on the 1st, 2nd, 3rd, 4th and 5th pleas, and demurrers entered to the 6th, 1th and 8th, which demurrers were sustained by the Court below. The pleas overruled upon demurrer were substantially as follows: For a sixth plea, the defendant says, that he did well and truly pay to the said Jacob Zimmerman, deceased, in his lifetime, the said sum of $50, in the said agreement stipulated to be paid on the first day of April 1847, and well and truly executed his bonds for the yearly payments of the residue of said sum of five hundred and thirty-eight dollars, the amount stipulated to be paid on said land, and which were accepted by the said Jacob Zimmerman, the testator, in performance of the covenant of the said defendant in that behalf. The seventh plea was a repetition of the eighth, except that the words ‘ ‘'promissory notes” were substituted for “bonds.” The eighth plea was a duplicate of the seventh. These pleas are special pleas of performance. The first inquiry is, to what breaches they are pleaded? The appellees argue that the agreement consists of several covenants; covenants to pay a certain sum in several annual instalments, and a covenant to give bond for the yearly payments; that they have complained of the breach of the former, and the appellants plead a compliance with the latter; that the pleas if otherwise good, are vicious, because they do not respond to the complaint and lead to immaterial issues, inasmuch as, the performance of one covenant is no bar to the action for a breach of another. These pleas are framed under the Act of 1856, ch. 112, without any commencement to indicate the count, or the breach, to which, they were designed as pleas. • Their precise application can only be determined by the grammatical construction of their language. The covenants of the agreement were twofold: to pay a certain sum in annual instalments, and to give bonds for the yearly payments. The plaintiff alleges that the — 285 — defendant has not paid certain instalments; the defendant answers, he has paid the sum stipulated to be paid on the 1st day of April 1847, and well and truly executed his bonds for the yearly payment of the residue of the said sum of five hundred and thirty-eight dollars, the amount stipulated to be paid for said land, and which were accepted by the said Jacob Zimmerman, the testator, in performance of the covenant of the defendant “in that behalf.” Is the covenant referred to by the words “in that bahalf,” the covenant to bond or the covenant to pay? It would be unmeaning to say, that having covenanted to pay and to give bond for the payment in instal-ments, the bonds were accepted in performance of the covenant to pay — -the means received for the end. The words “well and truly” imply in conformity with the obligation or covenants of the party, and must be taken to be averred in performance of the covenant, to which they literally apply. And again, the language of these pleas is — “and which bonds” or “which said notes were accepted as and in performance of the covenant of the defendant in that behalf” not in full satisfaction and discharge of the promises and undertakings in the declaration mentioned, and of the damages sustained by the plaintiffs by reason of the breaches aforesaid. The appellant insists “that the giving of the bonds was a performance of the covenant, and it is expressly alleged they were accepted in performance thereof,” not in satisfaction of the breach of other covenants to pay. It is urged that the right of action on the agreement, was merged upon giving the bonds, and the suit should have been upon them and not on'the original covenant. The original contract being under seal could not be merged in a security of only equal dignity; the bonds were of no higher obligation than the contract; they afforded an additional, but not exclusive remedy or right of action. The seventh plea presents the same objection, — 286 — only in another form. The promissory notes which are pleaded in this case, as having been made, executed and accepted, “as and in performance of the covenant of the defendant in that behalf,” besides not operating as a merger, are no where alleged to be negotiable, bills. It is no where alleged in these pleas, that the notes or bonds were substituted for the original contract to pay; but on the contrary they aver that they were executed and accepted in performance of the covenants of that contract. They were clearly cumulative and ancillary to the agreement. It is scarcely necessary to refer to authorities to show that in such cases, the obligee may proceed on one or the other, at his option. We think the demurrers to the 6th, 7th and 8th pleas were properly sustained. The plaintiffs, to maintain the issue joined on their part, called a competent witness, by whom they proposed to prove the handwriting, or genuineness of the signatures of the subscribing witnesses to the agreement, which was the cause of action, for the purpose of proving the due execution of that agreement by the defendant,— the said subscribing witnesses having become interested in the cause, since the alleged execution of the agreement, the one as executor of the deceased, the other as distributee and legatee of Jacob Zimmerman, the original obligee; To the competency and admissibility of which proof the defendant objected, which objection being overruled, the defendant excepted. If we correctly understand the argument of the appellant on this point, it is admitted that under the common law rules of evidence, the evidence offered would have been admissible, because it was strictly secondary evidence at common law, and proper when the primary proof, the attesting witnesses could not for any good legal cause, be examined; but the necessity of producing such primary proof being dispensed with by the Act of 1825, ch. 120, — 287 — the secondary proof falls with it. The Act of 1825, ch. 120, does not malee it unlawful to call the subscribing witness or witnesses, but makes it lawful to prove the execution of such instrument of writing, in the same manner and by the same evidence, that the same might be proved, if not attested by a subscribing witness. Notwithstanding this Act, a subscribing witness was still a competent and proper witness, other conditions existing: the object was to render it unnecessary to produce the subscribing witness, where it was required at common law, (except in cases of last wills,) not to disqualify such testimony. Because other secondary evidence, (proof of the handwriting of the makers of such instruments,) was made sufficient, it did not exclude proof of the handwriting of the attesting witnesses. It might happen under peculiar circumstances that such secondary proof would be the only evidence that could he produced. The statute was evidently designed to enlarge and not to narrow the means of proof. We think the ruling of the Court below on this exception was correct. The third, and last point "arises on the refusal of the prayer of the defendant: 1st. That if the jury find the defendant did not execute his bond or bonds for the deferred payments, the non-execution of the bonds was a breach of the covenants, for which a right of action at once accrued, and the plea of the statute of limitations was a bar to the action. 2nd. That if the jury shall find the agreement declared on to have been executed by the defendant, then, under the plea of the statute of limitations, and the issue joined thereon, and the proof in this cause, the plaintiffs are not entitled to recover. The first branch of this prayer proceeds upon the theory, that the lapse of more than twelve years, since the breach of the covenant to give bonds for the deferred payments, bars the right of action on the breaches of the covenant to pay annually, notwithstanding the — 288 — latter may have occurred within twelve years from the institution of the suit. The mere statement of the proposition shows its untenable character. The covenants were several and distinct, intended to serve different purposes; the obligee was entitled to his action on all and each of them, and if he reserved his suit until they were all violated, his forbearance should not be a bar unless carried beyond the limits of the law, — twelve years from the breach complained of. (Decided November 17th 1864.) The last clause was intended to cover all the breaches of the covenants sued on, for non-payment; as these occurred on the 1st of April 1848, 1849, 1850, 1851 and 1852, and the suit was brought on the 25th November 1859, none of them were barred by the plea, and therefore the prayer was properly rejected. Judgment affirmed.