Burnley v. Tufts

Cooper, J., delivered the opinion of the court. Burnley unconditionally and absolutely promised to pay a certain sum for the property the possession of which he received from Tufts. The fact that the property has been destroyed while in his custody and before the time for the payment of the note last due, on payment of which only his right to the legal title of the property would have accrued does not relieve him of payment of the price agreed on. He got exactly what he contracted for, viz., the possession of the property and the right to acquire an absolute title by payment of the agreed price. The transaction was somei thing more than an executory conditional sale. The seller had done all that he was to do except to receive the purchase price; the purchaser had received all that he was to receive as the consid-i eration of his promises to pay. The inquiry is not whether if hé had foreseen the contingency which has occurred he would have provided against it, nor whether he might have made a more pruf dent contract, but it is whether by the contract he has made his promise is absolute or conditional. The contract made was a lawful one, and as we have said, imposed upon the buyer an absolute obligation to pay. To relieve him from this obligation the court must make a new agreement for the parties, instead of enforcing the one made, which it cannot do. Singer Manufacturing Co. v. Cole, 4 Lea 439 ; Keitt v. Counts, 15 S. C. 493. The judgment is affirmed.