Bryant v. Saling

| Mo. | Apr 15, 1837

Opinion of the court, delivered by

McGirk, Judge.

An action of assumpsit was brought by Saling against Bryant, for work and labor and materials found by Sal-ing for Bryant, in and about buildiug a stone wall for the foundation oí a house. In the circuit court of Monroe county, Saling had judgment for fifty-five dollars. Bryant moved the court for a new trial, for the following reasons: — 1st, Because the verdict is against evidence. 2d, The verdict is against law; — the court overruled the motion. The only point made in the cause is, that the circuit court erred in refusing a new, trial. By the testimony, it appears that Bryant Was the owner of a lot of ground in the town of Paris, in the county of Monroe, •that he offered to give the lot to Saling, on condition that Saling would build thereon a certain house in a given time, and that Bryant should have the privilege of joining to the wall of Saling’s house another building when he should build. That Saling built a stone wall on the lot for a foundation; that he then declined going on with the building, and thereupon it was agreed that Bryant should pay for the wall at such price as should be fixed on by P. Ford and W. K. Vanarsdale; that these two persons' fixed on the value of the work to be sixty dollars, and that when they presented the estimate to Bryant, he said it was high, but that he would stand it. That Bryant was not to pay for the wall until he should build on the same, sell the same, or sell the lot, or otherwise dispose of the rock. It farther appeared that this wall stood at the trial of this cause as it did when .the arrangement was made, not sold, nor disposed of in any way. That after this agreement was made, about fifteen months elapsed before the bringing this suit. It appears that after Saling had declined building, Bryant asked about ‡ 100 for the lot, and Saling about $¡50 for the rock, and that after Bryant became the owner of the stone, he asked for the lot and stone wall $150, and the person who proposed the purchase, declined on the ground that the sum was too high. Mr. Wright, for Bryant, insists that the court erred in. refusing a new trial. That the jury erred in finding the. verdict, because the event.on which Bryant was to pay for the stone had not happened.

_ Mr. Williams, for Saling, insists that time enough did elapse after the agreement was made, and before the suit was brought for Bryant to have either sold the lot and rock, or the rock alone, or to have built on the same, and that it was his duty to have proceeded to do the one or the other immediately, and having failed to do so, he is liable to pay for thé rock. The first rule that may, with safety, be affirmed in regard to contracts of this kind is, that where money is to be paid on the happening of any event, the money is not to be paid till the event takes place. That when no time is fixed for the performance of the act, the party, who is to perform it, is to have a reasonable time to perform the act. That what is reasonable time, is to be determined by the nature of the áet to be performed, having a just regard to the ability of.the party to do the act, and how it may effect his interest to perform it, to perform the act by hasty or tardy measures at one particular time, or at any other.

In the case at bar, the witness says, the money was not to be paid until the lot and rock were sold, built on or used by Bryant; but the jury, or court sitting as a jury, have declared the law to be that, he is bound to pay, although no use has been made of the wall by Bryant, and for the reason that Bryant was bound to proceed to sell, build on, or use the rock immediately. It is clearto our minds' that, in so vie wing the case, great injustice has been done, and the law has been misapplied.

'Mr. Williams, for Saling, has cited the case of Breken* ridge’s administrators, vs. Lee’s executors, 3 Bibb’s Rep. 329, to prove that it was the duty of Bryant to have sold or used the stone wall, so that the money would be due to Saling. In that case, the purchaser of a tract of land, covenanted to pay the vendor £10 for 100 acres of land, and that none was to be paid till the title should be clearly, legally, and indisputably ascertained; and also that the purchaser was, at his own expense, to proceed to investigate the title — no time was fixed on when the investigation was to be made. Nine or ten years afterwards suit was brought for the money. The defendants relied on the ground that the title had not been ascertained and investigated. The court held that it was the duty of the defendant to have proceeded immediately on the investigation of the title, and not having done so, was liable. We see no objection to the principle of this case; — in this case it is evident the party’s duty was to proceed and investigate the title as speedily as the forms of law and the nature of the business would permit. If nine or ten yeará would not be enough, the defendant should have shewn it, but prima facie, the time would seém to be long enough. In the case before us, fifteen months might, or might not, be timeenough to enable Bryant to perform the act.

B’ forTcertain^ stonewall, when he (A.) should sdl the" same dispose of the’lot, on which it was is entitled to sonable time to until thateventn<1 takes place, B. What ^wouhTbe a reasonable time must depend on

In the first place the wall was built by Saling entirely with a view to his own interest, and when he found it would not be to his interest to build a house on the same, ^eSan to cast about in his mind how he should dispose °f the'wall to pay him for his labor; — the wall was on Bryant’s land.

It seems he had the liberty to take the rock away, and the same to whomsoever he could: but this he perhaps could not do without a loss, or if he could, why did not ^• He seems to have come to the conclusion that the best thing he could do would' be to let Bryant use ^ wa^ to Uuild on, or to let him, if he sold the lot, the wall with it; or to let him otherwise use or sell the stone as might suit him best. In all this proposed ar-Bryant had nothing" to gain; he might have kept the rock and wall without paying any thing therefor, as the same was on his land, and Saling declined fulfiling the conditions on which he was to have the lot. In this condition of things. Bryant agreed to do that which some other men would not have agreed to do. He agrees that he builds on the wall he will pay for it; or that if he should sell the Jot and the wall with it, then he will pay for it; or that if he should sell the rock of the wall alone, then he will pay for it; — but that as he was to gain nothing by the agreement, he stipulated that until he received some benefit from the transaction in some way, he was not to pay any thing. This was the bargain. Saling now argues as he might do if he had done the work for Bryant his request. He seeks to hurry Bryant into a sale of the lot for his benefit, without regard to the question whether Bryant would not lose by the sale of the lot;— seeks to make Bryant sell, or otherwise use, the stone, that he may get his money. This is somewhat unjust, and somewhat ungracious, too. The true spirit of this agreement is, that Bryant is to have a reasonable time to accomplish the agreement, and he is not bound to hasten sacrifice that property. Is it not altogether a matter accommodation to Saling to undertake to .pay at all? In fact there is no consideration for the contract, Bryant realizes something in the shape of benfit from the wall.

In this view of the case, the verdict is clearly and entirely against the evidence, and the judgment entirely agajnst the law of, and right of the case. Judgment recovered with costs.