Babcock v. Wilson

17 Me. 372 | Me. | 1840

The opinion of the Court was prepared by

Shepley J.

By the first clause in tho contract the defendants promise to pay ten promissory notes, payable annually; and to save the plaintiffs from all cost and damage arising from their having signed them. This promise could be performed by paying each yearly, with the interest annually, as it became due ; and it secured to the defendants a credit extending to nearly ten years for the last instalment.

By the second clause the defendants engage to pay a further sum of eight hundred dollars, one half in three and the other half in twelve months from the date. “As a full consideration for which” the plaintiffs agree to convey their interest in the Marsh-point lot. If the word which is to be referred for its antecedent to the payments to be made, the plaintiffs might not be required to convey the title until the final payment was made. Permitting it to have reference to the promises of the defendants, as the counsel of each party admits was the intention, and no time is appointed for making the conveyance, there is nothing in the contract indicating an intention, that it should precede the payments as a condition precedent, nor that it should be executed at the time of payment of any one of the instalments. The contract exhibits evidence of an entire confidence then reposed by each party in the other for the performance of their respective engagements. And it is highly probable, that it was expected that the notes due to Pierce would be discharged, or differently secured by some new sale or negotiation, in a short time, when the title would be conveyed to some third party. Any such expectations, if entertained, have not been realized, and they now appeal to the law to decide upon their rights.

In the case of Terry v. Duntze, 2 H. Bl. 389, it was decided, that when payments were to be made by instalments the covenants were independent, although the last instalment was to be paid when the work was completed. This rule appears to have been approved in the cases of Seers v. Fowler, 2 Johns. R. 272, and Wilcox v. Ten Eyck, 5 Johns. R. 78; while it is impugned in Johnson v. Reed, 9 Mass. R. 78; and the case is alluded to, apparently with approbation, in Gardiner v. Corson, 15 Mass. R. 503. The rule should be received with the qualification, that if the payment of any instalment is made to depend upon the performance of any act by the other party, as it respects that one, the stipulations are dependent, while as respects all the others, they remain independent.

In the note of Sergeant Williams to the case of Pordage v. Cole, 1 Saund. 320, the rule is stated to be, that if the day appointed for payment must or may happen before the act is to be performed for which it is the consideration, performance is not a consideration precedent to the payment; “ and so. it is,” he says, “ where no time is fixed for performance of that, which is the consideration of the money or other act.” This rule appears to be well established by the cases to which he refers, and it received the approbation of the Court in the case of Couch v. Ingersoll, 2 Pick. 300. The application of it to this contract decides, that the stipulations were independent, and that each might exact performance of the other without proving that he had performed on his own part.

It is objected, that there was no consideration for the defendants’ promises, but the promise of one party was a sufficient consideration for that of the other.

The second question submitted relates to the title which was agreed tobe conveyed. The plaintiffs and defendants, and Brown, had, on the twenty-eighth day of May previous, purchased the Marsh-point lot of Pierce,-in certain proportions, receiving a deed of general warranty. The defendants, by this agreement, contracted to parchase the share thus conveyed to the plaintiffs. Was it the intention of the parties that the plaintiffs should add their warranty to that already received from Pierce, or were they only to convey with warranty the same title which they had acquired ? The contract declares, that they are to give “ a good and sufficient deed of warranty of all and fully their interest in the Marsh-point lot,” “ meaning all and fully the same right, title and interest deeded to them by Waldo T. Pierce &f ah. as by reference to said deed, dated May 28, 1835, will more fully appear.” The engagement is not to convey a certain portion of the lot, but only their interest in it; and to remove all doubt respecting the extent of that interest, it is to be the same conveyed to them by Pierce and others; How can the defendants claim, that they should convey a greater' dr different interest, when the contract by which they require it declares, that it shall be the same, and neither more nor less ? The language appears to have been carefully applied to carry into effect the apparent design of placing the defendants in the position of the plaintiffs as respects that portion of the lot conveyed to them, and of requiring this to be done by their executing a deed of warranty of the interest, which they had acquired. If there were doubts respecting the title, and none appear to have existed at that time, it must have beén the' intention, that the defendants should rely upon the warranty of Pierce, and others, to whom the principal portion of the purchase money was to be paid. The matters stated in fhe report cannot therefore constitute a: defence to this action;