9 Utah 260 | Utah | 1893
This action was brought to recover the penalty in a bond which was given as a guaranty for the faithful performance of a contract to convey real estate. The respondents were sureties on the bond. When the evidence of the plaintiffs was introduced the defendants moved for a nonsuit, which motion was sustained over the objection of plaintiffs, who thereafter moved for a new trial, and, this motion being overruled, they prosecuted their appeal in this court.
The contract in question, among other things, specified that the purchase price for the land was $10,000, of which $3,333 was paid down, $3,334 was to be paid October 1, 1890, and $3,333 on April 1, 1891, and then further provides as follows: “And, in case any payments are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative; and when the payments are made as above provided the land to be conveyed to said Eugene }V. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances.” This is a unilateral contract, and according to its terms it was incumbent upon the vendees to pay the whole amount of the purchase price before they could demand performance on the part of the vendors; the vendees, however, having the right to
“The condition of the above obligation is such that the-above-bounden E. A. Reed and H. H. Henderson, on or before the first day of October next, or in case of their-death before that time,' if the heirs of the said E. A. Reed and H. H. Henderson, within three months after their decease, shall and do, upon the reasonable request of the-said Eugene W. Ooughran and Nathan H. Cottrell, their heirs or assigns, make, execute, and deliver, or cause so to be made, a good and sufficient warranty deed in fee simple, free from all incumbrances, and with the usual covenants-*264 ■of warranty.” And, after giving a description of the property, it further specifies: “Provided, the said Eugene W. ■Coughran and Nathan H. Cottrell comply with their part •of the contract this day made and delivered to them by the said E. A. Eeed and H. H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue.”
This obligation refers to the performance of the contract already made and entered into by the parties, and may be rendered null and void either by the vendees failing to make the payments as provided, or, if the payments are so made, by the vendors conveying the property as provided. Under the contract the vendors were not required to make conveyance until the last payment was made on April 1, 1891. Here the payments were made a condition precedent. Under the condition in the bond conveyance was to be made •on or before the 1st day of’October, 1890. Here the pay-■jnents were made a condition subsequent, and yet the condition of the bond requires the vendees to perform their part of the contract. These provisions are repugnant to each other, and this has raised the question as to whether the parties to the transaction are controlled by the conditions of the bond, or by the contract, or whether the two instruments form but one contract. Both instruments were executed and delivered on the same day; the contract first, and then the bond, which refers to the contract. Both refer to the same transaction, to the same subject-matter. 'They are therefore presumed to evidence but a single contract, and should be construed together, and the intent of the parties must govern. 2 Pars. Oont. 503; 1 Warv. Vend. 17-
The bond was given to secure the performance of the contract, refers to it, and this makes the contract a part ■ of it, — a part of the preamble of the condition of the .bond, — and it must therefore be construed the same as
In Miller v. Stewart, 9 Wheat. 680, Mr. Justice Story, delivering the opinion of the court, said: “Nothing can be clearer, both upon principle and authority, than the doctrine that the liability of a surety is not to be extended, by implication, beyond the terms of the contract. To the extent, and in the manner, and under the circumstances pointed out in his .obligation, he is bound, and no further. It is not sufficient that he may sustain no injury by a change in the contract, or that it may even be for his benefit. He has a right to stand upon the very terms of his contract; and if he does not assent to any variation of it, and a variation is made, it is fatal.” 1 Brandt, Sur. § 93; 2 Pars. Cont. 16; Insurance Co. v. Johnson, 120 Ill. 622, 12 N. E. Rep. 205; Dobbin v. Bradley, 17 Wend. 422; Birckhead v. Brown, 5 Hill, 634; Bank v. Kaufman, 93 N. Y. 273. In conformity with the doctrine thus expressed, the contract between the vendors and vendees in this case fixed the liability of the guarantors, and the failure of the ven-dees to make their payment on the first day of October,