33 Vt. 233 | Vt. | 1860
It seems to have been decided by this court in Hard v. Brown, 18 Vt. 87, that where one is bound to
In those cases where the parties are required to do concurrent acts, those upon one side being the consideration for those on the other, it is not required that the one party, in 'order to secure a right of action against the other, should make a formal and express tender. All that is required, either in proof or in pleading, is that the party claiming a breach upon the other part should show that he made no default himself; that he was ready and willing to perform his part of the undertaking; that this was well understood by the other party, but that the other party, notwithstanding, refused to perform his portion of the contract. This point is expressly decided in Rawson v. Johnson, 1 East 203, and is recognized in numerous cases referred to in Redf. on Railways 262, note 3; 2 Kent Com. 299, and note. It seems to us. the facts in this case show a sufficient readiness to perform on the part of the plaintiff, at the time he made the several demands, subsequent to the former action, and that this was sufficiently understood by the defendant, and that his refusal was abundantly shown upon several occasions. At other times he seems to have manifested a willingness to execute a deed, if he could obtain his pay ; but no such evidence is put in this case, until after the commencement of the action, although he testifies that he was willing in fact. , That probably could not be allowed to affect this action unless made known to the plaintiff, and a new offer after suit brought is certainly not to put the defendant in any better position than he would have been without it. And he probably should not be placed in any worse condition on that account. We see no reason to question the entire soundness of the views expressed to the jury, in regard to the necessity of a tender on the part of the plaintiff, and also as to what will constitute sufficient readiness and willingness in such cases in parties situated as the plaintiff was.
The only doubt which seems fairly to arise in the case is in
The facts evinced, to my mind, by both trials, are briefly these: The plaintiff preferred to give up the contract, if he could recover' back what he had paid. This he thought he could do upon such advice as he obtained, and brought his suit for that purpose, relying upon the contract not having been reduced to writing, as so far rendering it inoperative, under the statute of frauds, that he might do this. This court were unable to adopt that view, and held, 29 Vt. 510, that the plaintiff, by repudiating the contract, must lose what he had done towards its performance.
The legal effect of this decision was to leave the plaintiff without any redress, either upon the contract or for the money which he had paid. He could not recover upon the contract; 1st» because it was not in writing ; 2d, because he had not performed it on his part; 3d, because he had formally renounced and abandoned it. The reasons why he could not recover back the money are stated in the report of the case, 29 Vt. 510. After this, to entitle the plaintiff to sue a second time and recover back the money paid, it is obvious some change of facts must be shown, or the decision in 29 Vt. 510 will be conclusive. This change must, as it seems to me, be equivalent to a consent on the part of the defendant, to treat the contract, as still subsisting and open to be performed by the plaintiff, and also to treat the one hundred dollars as paid towards the price of the land, which would follow from renewing it. All this, too, must have occurred before the commencement of this action in order to avail the plaintiff here. And it must have been acceded to by the plaintiff, so as to operrate as a virtual renewal and restoration of the contract to its former status between the parties. For a mere offer on the one side, and a refusal upon the other, to treat the contract as restored will not be binding upon the parties ; such a transaction will end with the offer and refusal. But if one party makes the offer to treat the contract as still subsisting, and the other accedes to the offer, or if in any other way the parties mutually consent to treat the contract as subsisting and binding, and each proceeds tq acf itpoq
But this is matter of fact, and was not submitted to the jury at all, but is assumed by the court as conceded in the trial, or as if the testimony was all in one direction upon this question. But the defendant’s two first requests to charge look exclusively to this question, so that it could not have been abandoned at the trial. And the testimony as to what occurred between the parties before the trial looks very much as if the defendant intended to insist that the plaintiff had sq effectually abandoned the contract by the suit to recover back the money, that he could not claim either the money or the land, which was the fact, as the parties then stood, unless the defendant waived it.
But the defendant did testify in the case that he had always been ready and willing on his part to accept the balance of the price and security, and give a deed of the land, and that a few days after this suit was brought he tendered a deed to the plaintiff, who refused to receive it, and this fact was admitted by the plaintiff. This does not seem to amount to more than a denial on the part of the defendant, that the plaintiff offered to perform the contract on his part. What is said of his own willingness to perform seems to be a reason why he knows the plaintiff did not offer to perform, with the additional comfirmation, that he offered to deed since the suit was brought. All this seems to me to come somewhat short of the renewal of the contract. But as it evinces, in connection with the facts found by the jury, of the plaintiff’s offer to perform the contract, an admitted readiness on both sides to treat the contract as still subsisting, although not fully expressed to each other, I do not feel that any injustice will be done the defendant by affirming the judgment below, since the jury have found against him all the facts denied by him at the to;ial; so that his own concessions and the finding of’the jury do seem to make a case against the defendant. And it is probably doing the defendant no injustice to assume, and as the court below did, that what he testified to was true, and that he really had always been willing to waive the abandonment of the contract by the plaintiff.
