Carpenter v. Holcomb

| Mass. | Oct 15, 1870

Colt, J.

The bonds of the plaintiff and defendant were executed at the same time, and are construed together. The conveyance of the farm free of all incumbrances, and the payment therefor by the defendant, were concurrent and mutually dependent conditions. In such contracts, neither party can maintain an action for the refusal or neglect of the other to perform, without showing performance, or its equivalent, on his own part. An offer to perform by one who is ready and willing, and free from any conditions to which the other has a right to object, is sufficient ; and so also may be a refusal to accept performance, even before any offer thereof, unless its effect is subsequently cured by seasonable notice of a change in purpose. The law does not require vain things, or an idle ceremony, to give the plaintiff a right of action. Howland v. Leach, 11 Pick. 151, 155. Tinney v. Ashley, 15 Pick. 546, 552. Smith v. Boston & Maine Railroad, 6 Allen, 262, 272.

In Pomroy v. Gold, 2 Met. 500" court="Ky. Ct. App." date_filed="1859-01-10" href="https://app.midpage.ai/document/board-v-helm-7129824?utm_source=webapp" opinion_id="7129824">2 Met. 500, cited by the defendant, it is to be noticed that the case was submitted to the court upon an agreed statement, with authority to make the same inferences which a jury might draw from the facts stated. There was indeed, in that case, a positive declaration by the defendant that he would not perform, which under most circumstances would be held equivalent to a refusal to accept performance, if offered by the other party; yet, under the peculiar circumstances, it was there held, that the jury would be warranted in finding that the refusal was no waiver of the right to require performance or an offer of performance from the plaintiff. North v. Pepper, 21 Wend. 636" court="N.Y. Sup. Ct." date_filed="1839-10-15" href="https://app.midpage.ai/document/norths-administrators-v-pepper-5515366?utm_source=webapp" opinion_id="5515366">21 Wend. 636. Franchot v. Leach, 5 Cowen, 506.

By the terms of this report, the verdict for the plaintiff is to stand if the action can be maintained; and applying these rules of law to the facts and the evidence here reported, a majority of the court are of opinion that it can be maintained. Upon this reservation we are not to decide any question of fact, but only the question of law, whether there is evidence upon which the issue of fact might be found for the plaintiff by the jury.

Upon the last day limited by the original contract for the delivery of the deed and the payment of the money, the parties met; and there was evidence that the time for the completion of the business was extended, by an agreement originating in the suggestion of the defendant, to the next morning. In the morning, the plaintiff told the defendant, in substance, that the deed would be made as soon as the money which he was to pay was ready. This statement must be regarded, and must have been understood at the time, as an offer to convey the farm named, in the mode described in the contract, free from all incumbrances. In reply to this offer, the defendant declared that he would not take the farm, assigning no reason in that connection for his refusal, but offering to give up what had been paid by him towards the purchase money, if the bonds could be exchanged and the contract given up. At the time the contract was made, there was a mortgage upon the farm of comparatively small amount, of which the defendant then had information, and which had not been paid or discharged at the time of the plaintiff’s offer. And in the further conversation which took place, the defendant asked if this mortgage, which he described as the old mortgage, could be permitted to he on the farm, and he was told that the holder wanted his money.

The defendant insists that the plaintiff fails to show a readiness to perform, at the time of her offer, because the mortgage was not then discharged. But readiness, within the meaning of the rule, does not require full and complete preparation at the moment when the offer is made. It is not necessary that the plaintiff should come with the deed and discharge of the mortgage duly signed, sealed, stamped and ready for delivery, and with release of dower, when the contract requires such release. It is enough, where there is an unqualified refusal of the defendant shown, if the plaintiff has the ability to procure a discharge and give a good title. There was evidence here, taken in connection with the known and usual mode of transacting such business, the defend* ant’s knowledge of the existence of the mortgage, its comparalively small amount, and the fact that both parties recognized that it was then due, which would justify the jury in finding that the defendant refused to accept performance, and waived his right to require performance, or further tender of performance, on the part of the plaintiff. The defendant’s refusal to take a deed was unqualified and absolute, not founded upon the existence of the incumbrance, or a doubt of the plaintiff’s ability to remove it if necessary. Upon this point, the defendant’s offer to give up that part of the purchase money which he had already paid is significant, and inconsistent with the idea that he then relied on the insufficiency of the plaintiff’s offer.

The circumstances attending the refusal, and the terms in which it was expressed, were such as to justify the jury in inferring that to procure a discharge of the mortgage, and make further proffer of it, would be but an idle ceremony, which it was intended to dispense with, thus leaving the defendant wholly at fault in not completing the contract. Hapgood v. Shaw, ante, 276. Judgment on the verdict.