Putnam v. Mellen

Eastman, J. The plaintiff’s declaration contains several counts which may be stated in substance as follows: The first alleges that on the 27th day of December, 1854, it was agreed between the plaintiff and the defendant that they should exchange oxen, and that the plaintiff should pay the defendant twenty dollars, as the difference ; seventeen dollars of it to be paid on the 15th day of January, 1855; and that the defendant should, on the next day, deliver his oxen to the plaintiff and receive the plaintiff’s in exchange therefor; that the plaintiff at the same time paid to the defendant three dollars, part of the twenty dollars, in earnest of the bargain; and that on the next day, to wit, the 28th, the plaintiff offered to deliver to the defendant his oxen, and requested the defendant to deliver his, the defendant’s oxen, to the plaintiff, which the defendant then and ever since has refused to do. The second count is substantially the same as the first, with this exception, that it alleges the agreement to be that the defendant was to send his oxen to one Willey’s on the morning of the 28th of December, where the plaintiff’s oxen were kept, and that the exchange was to take place there ; and it avers that the plaintiff’s oxen were then ready to be exchanged, and were offered to the defendant, but he refused to make the exchange. The third count sets forth that the exchange was to be made on demand ; that a demand was made on the 28th of December, the day after the agreement, and that the defendant refused to make the exchange. Upon these counts the question is presented as to the nature and legal effect of the contract between the parties, and whether the action can be sustained upon the evidence. Williams, in his note 4 to Pordage, v. Cole, 1 Saunders 320, after examining the authorities with much care, states the rule as clear and indisputable, that where there are several covenants, promises or agreements, which are independent of each other, one party may bring an action against the other for a breach, without averring performance on his part; and that it is no excuse for the defendant to allege in his plea a breach on the part of the [79] plaintiff. But where the covenants, promises or agreements are dependent, it is necessary for the plaintiff to aver and prove a performance on his part to entitle him to an action for the breach: That covenants, &c., are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good sense of the case, and that technical words should give way to such intention. Among the rules laid down as showing where performance is necessary to be averred, one is, that if a day be appointed for the payment of money, or part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act before performance ; for in such case it is apparent that the party relies upon his remedy, and does not intend to make the performance a.condition precedent. But when a day is appointed for the payment of money, and the day is to happen after the thing which is the consideration of the money is to be performed, no action can be maintained for the money before performance. 1 Saund. 320, note 4, and authorities there cited; 1 Chitty’s Pld. 313; Thorpe v. Thorpe, 1 Salk. 171; 12 Mod. 462; Dox & al. v. Dey, 3 Wendell 356. And where the agreements or covenants are independent as to one party, they are necessarily so as to the other; so that if any act is to be done, service rendered, or article delivered by a specified day, and the money to be paid therefor is not to be paid till a subsequent day, an action can be maintained for a breach of the agreement before the money becomes due. Thus in Dox & al. v. Dey, 3 Wendell 356, it was held that agreements are independent where, on the one hand, an article of merchandize is sold and agreed to be delivered on demand, and on the other, payment is deferred until five months after the date of the contract; and that an action may be maintained for the non-delivery of the article, without averring performance on the part of the plaintiff. In Groodwin v. Holbrook, 4 Wendell 377, it was held that covenants are independent where there is a covenant to convey by a [80] day certain on the one part, and such day precedes the time of payment of the consideration. To the same effect are Campbell v. Jones, 6 Term 577; Seers v. Fowler, 2 Johns. 272; Heard v. Wadham, 6 East 629; Couch v. Ingersoll, 2 Pick. 292; Terry v. Duntze, 2 H. Blk. 389; Kane v. Hood, 13 Pick. 281. In Fairbanks v. Dow, 6 N. H. 266, Dow agreed in writing to sell Fairbanks his farm for two hundred and fifty dollars, to be paid one third yearly from the date of the writing, with interest annually. No time was fixed for the conveyance to be made, and it was held that no action could be maintained against Dow for not conveying the land, without showing that security for the payment of the purchase money had been tendered and a deed demanded. This decision appears to have proceeded upon the ground that as no time was fixed for the deed of the land to be made, the duty to convey was dependent upon the payment of the purchase money; and that consequently the right to demand a conveyance did not arise till after the payment of the money; or at least that a suit could not be sustained till after security was offered for the payment, and a deed demanded. Where two acts are to be done at the same time, as where one party covenants to convey an estate on a particular day, and in consideration thereof the other party agrees to pay a certain sum of money on the same day, neither can maintain an action without showing performance of, or an offer to perform on his part; and this rule is said to apply particularly to all cases of sale. Callonel v. Briggs, 1 Salk. 112, 113; Thorpe v. Thorpe, 1 Salk. 171; Goodisson v. Nunn, 4 Term 761; Porter v. Shepard, 6 Term 665; Lancashire v. Killingworth, 2 Salk. 623; Morton v. Lamb, 7 Term 125. The plaintiff’s declaration sets forth a contract, containing agreements both dependent and independent. The agreement to exchange the oxen on the 28th of December was mutual. There was something to be done by both parties on that day. Mellen, the defendant, was to deliver his oxen either to the plain [81] tiff or at Willey’s, or on demand, according to the different counts; and Putnam, the plaintiff, was to deliver his or have them ready to be delivered, at the'same time, to Mellen. Neither could maintain an action against the other without showing performance or an offer to perform to that extent; and the declaration contains the necessary and proper averments in this respect. But the agreement to pay the seventeen dollars on the 15th of January following was an independent undertaking; a promise not to be performed till that day ; and hence it was not necessary either to aver or prove the payment of the money, for it was not a condition precedent to the exchange of the oxen. The declaration appears to set forth a good cause of action, and the averments are sufficient. Was the evidence competent to sustain the declaration ? It tends to show a contract entered into on the 27th of December for an exchange of oxen on the 28th, to be made at the house of Willey. It tends also to show that Putnam’s oxen were at Willey’s on the morning of the 28tb, ready to be delivered, and again through the day after Willey’s return with the laths. The evidence was competent to show that the cattle were ready at the time and place agreed upon. They were within twenty-five rods of Willey’s when Willey and Putnam met. No precise point was agreed upon where the cattle should be, and no special hour fixed for their exchange ; and the contract, we think, was substantially complied with by the plaintiff. And further, if there could be any technical defence on the ground that Putnam’s cattle were not there at the precise time when Mellen came, we should probably hold that it was waived by the subsequent .conduct of Mellen. Wiggin v. Scammon, 7 Foster 360; Thayer v. Wadsworth, 19 Pick. 349. And the same may be said in regard to their being worked ; the defendant waived all objection on that' account. No complaint was made that they were injured or had been used. It was not necessary that Putnam should have left his note for the seventeen dollars with Willey, or given security for the same. The case is not parallel .with that of Fairbanks v. Dow, for in the latter the time when Dow was to make the conveyance was [82] not fixed; and the payment of the money was regarded as precedent to the obligation to give the deed. Here the contract was explicit for an exchange of the oxen on the 28th of December, but the payment of the money was not to be made till the 15th of January. There was therefore no obligation to make a deposit of the money against the day of payment, and none to leave any evidence of the debt then to accrue. The agreement showed what the contract was, and had a note been left, as stated by the defendant to Wille}'-, it would only have been evidence of the promise to pay the money at the appointed time; and that evidence already existed by the knowledge of witnesses who were cognizant of what had taken place. There was in fact no evidence tending to show that a note was to be given. Upon this case as presented, we see no ground upon which a successful defence can be made. The plaintiff appears to have done substantially all that he agreed to do, or all that the law required him to do, and the defendant has failed to deliver the oxen according to his contract, and must be held liable therefor. Judgment for the plaintiff.