Babb v. Kennedy

19 Me. 267 | Me. | 1841

The opinion of the Court was delivered by

Weston C. J.

By the condition of the bond in suit, and the agreement recited therein, the plaintiff was to convey the land there described, by the time limited, and upon the delivery of the deed, the principal defendant was to pay two hundred dollars, and give security for the residue of the purchase money, as is stipulated in the condition. These were acts to be performed simultaneously, and if the condition had stopped there, it is very clear, upon the authorities, that the plaintiff could maintain no action upon the bond, without performing, or offering to perform, the stipulation on his part. Brown v. Gammon, 14 Maine R. 276; Howe v. Huntington, 15 Maine R. 350.

But if the parties were not satisfied to leave the matter, subject to the legal deductions, usually drawn from an instrument of this character, they were at liberty, in any lawful manner, to modify their contract at pleasure. Now the defendants expressly agree to be bound, unless the principal defendant, by the time appointed, should make and secure the payments, “and demand a deed of said Babb of the premises.” No other sensible construction can be given to a clause so unusual, but that the first movement was to be made by the principal defendant, and that the plaintiff might await his demand. It was in effect a stipulation, that the defendants should be liable upon the bond, without the tender of a deed from the plaintiff, unless demanded. Where a tender would be otherwise necessary, it may be expressly waived by the party, to whom it is to be made.

In our opinion, a nonsuit was improperly directed.

Exceptions sustained.