1 Ohio 330 | Ohio | 1824
Opinion of the court, by
In the case of Kingston v. Preston, Doug. 690, 691, Lord Mansfield observes, “There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other for the injury he may have received, by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions dependent on each other, in which the performance of one depends on the .prior performance *of the other, and, therefore, till this prior condition be performed, the other party is not liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time, and in these, if one party was ready, and offered to perform his part, ¡and the other neglected or refused to perform his, he who was ready and offered, has fulfilled his engagement, and may maintain an action for the default of the other, though it- is not certain that either is- obliged to do the first act.”
Much difficulty arises at times in the construction of covenants, .and in ascertaining whether .they are dependent or independent; but the same rules must be adopted as in the construction of other instruments of writing. The intention of the parties is to govern, and that intention must be collected from the whole instrument taken together. The order of time in which the several acts are .to be performed, however much they may be transposed in the
In declaring in covenant, the declaration must be varied according to the nature of the instrument declared on. If the liability of the defendant depends upon the performance of a prior covenant or condition on the part of the plaintiff, performance ora tender of performance must be averred, or the declaration will be bad on demurrer. If the covenant contains mutual conditions to be performed at the same time, the ^plaintiff must aver that be was ready and offered to perform on his part, but it is not-necessary that he should aver performance, or an actual tender of performance. 1 East, 203; 3 Bos. & Pul. 457; 5 Johns. 179.
There is, perhaps, more difficulty in determining to which class-of covenants the contract before the court belongs than seems to be apprehended by counsel. The agreement was made on the 27th of March, 1818, at which ti me, merchandise, estimated at the value of eleven thousand four hundred and eighteen dollars and thirty-two cents, was paid by the plaintiffs, Courcier and Ravises, to the defendant, Graham, and paid as expressed in the contract, on account of the purchase of the land. They covenanted to deliver the aforesaid amount of merchandise forthwith, and the evidence proves that it was forthwith delivered. In addition to this, they covenanted that they would, “from time to time, when thereunto required, within one year from the date hereof, deliver to him, the-said Thomas Graham, or to his agent, or order, any further quantity of merchandise, as he, the said Thomas Graham, or his agent, or order, may select, at a fair market price, to the amount of-dollars, further on account of the aforesaid tract of land.” The
Again — let' us compare the covenants in this case with those in the caso of Bennett v. The Executors of Pixley, 7 Johns. 249. In that case the declaration stated that the testator, on the 22d of February, 1802, by his writing obligatory, sealed, etc., promised and agreed with plaintiffs, in consideration of $400 to him paid, to convey to the plaintiff, on or before the 1st day of December
*There appears to be a groat degree of similarity in the features of the two cases. In one, $400 was paid in land; in the other, more than $11,000 was to be paid, and actually was paid upon the execution of the contract. In both, the land was to bo valued and conveyed at a subsequent period, and in both, if the valuation exceeded the amount already paid, the vendee was to make up the difference, in the one case by payment, in the other by securing payment; and if the valuation fell short of the amount already paid, then the difference to be accounted for by the vendor. It may be said that in the ease cited there was no agreement that the amount beyond the $400 should be paid at the time the conveyance should be executed. But what say.the court? “Assuming that there was a covenant on the part of the plaintiff to pay for the amount of the appraisement beyond $400; yet it only went to a part of the consideration, and the rule is settled that where mutual covenants go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent. The covenants in such case are to be considered as independent.” “ The damages sustained would be very unequal if the covenant of the plaintiff was held to be a condition precedent. He, in the meantime, loses his $400, and the testator might not lose anything. The plaintiff had in part (at least) executed the bargain by paying the $400, and the testator ought not to keep that sum without conveying the land, because, that possibly there may be a surplus to receive, and be may sustain some damage by the plaintiff not tendering that surplus. This would be unjust. He is bound to convey, and
The principle decided, and the reasoning adopted, apply strongly to the case under consideration.
The mutual covenants go only to a part of the consideration. •More than $11,000 was actually paid, and additional payments were to be made or secured, provided the land should be valued • •at an amount greater than what was then paid. In this case it may be said that the damages .would be unequal if the covenant of the plaintiff was held to be a condition precedent. He would lose his $11,000, *and Graham might not lose anything. In this case the'plaintiff has in part (at least) executed the bargain -by the payment which he has made, and in this case had Graham, .at the end of the year conveyed the land, and had the plaintiffs refused to secure the payment of the surplus, he might have had his action to receive that surplus.
If the cases cited are law (and the principles by them decided appear to be consistent with reason, justice, and common sense), I should be led to the conclusion that the covenants in the case before the court must be regarded as independent. But as the decision of the court upon the motion for a nonsuit is not founded upon this idea, it is unnecessary to give a definite opinion upon the point. 'The defendant contends that the covenants are dependent, or, at least, that they contain mutual conditions to be performed at the ■same time. The plaintiffs in their declaration have thus treated them, and have alleged performance on their part, or a readiness and offer to perform. Upon the trial, these averments in the declaration were not proven, and if by the .pleadings they were properly put in issue, the motion for a nonsuit should have prevailed.
Whatever is admitted in pleading need not be proved, and whatever is not denied may be considered as admitted. In covenant greater strictness is required in pleading than in most other actions. If the defendant relies upon matter of excuse for the nonperformance of his covenant, he must plead it specially. If he would excuse himself on the ground that the plaintiff hath hot performed a condition precedent, this must be pleaded specially. 1 Chitty’s Pleading, 483. This form of pleading is adopted in the books, and I find no case where the plaintiff, for the purpose of supporting his action merely, has been compelled to prove the performance of a precedent condition, unless the fact of performance
*In the present case the plea is non est factum. "What is put in issue by this plea? Counsel for defendant say that this is a general issue plea, and that a plea of the. general issue puts the plaintiff upon proof of all the material averments in his declaration. This, as a general rule, is undoubtedly correct. But in some actions, it is said in the books, there is no general issue. And in some actions the general issue plea is not considered as a denial of all the allegations of the declaration. In replevin, for instance, the plea of non cepit puts in issue nothing but the taking of the property. Under that plea the plaintiff is not bound to prove any interest in the property taken. Yet this is a general issue plea; and what is denied in an action of debt or covenant by the plea of non est factum, except the sealing and delivery of the deed upon which the action is founded. Cbitty, in his treatise on Pleading, vol. 1, p. 116, says that this plea puts nothing in issue but the sealing of the deed; and Espinasse, in his Digest, 306, that the issue is only upon the existence or goodness of the deed. For this dictum he cites 2 Black. 1152. The doctrine laid down by Chitty and Espinasse is supported by this and other adjudged cases. Muscett v. Ballet, 2 Cro. 369; Bishop v. Brook, Com. Rep. 303; Gardner v. Gardner, 10 Johns. 47, are full in point, so that the counsel for the defendant must be mistaken in supposing that this is a denial of all the material averments in a declaration, for most declarations in covenant contain other averments than the single allegation of the sealing and delivery of the deed. But are not these ojúnions and decisions consistent with reason and common sense ? One principal object of pleading is that the parties may have notice of the grounds of complaint and defense upon which they severally rely. The plaintiff in his declaration alleges, among other things, that the deed declared on is the deed of the defendant. To this declaration the defendant pleads non est factum; in other words, he denies the existence or goodness of the deed. By this plea he apprises the
In the case under consideration, the defendant having pleaded as before stated, the cause was submitted to the jury. The plaintiffs introduced in evidence the deed, the validity of which was not questioned. He introduced further evidence to prove the amount of damage sustained. The testimony, was competent, and having it before them, the jury could not have found that the deed was not the deed of the defendant, but must of necessity return a verdict for the plaintiffs upon the issue joined; and the court could not with propriety have directed a nonsuit.
Having disposed of the question upon the point reserved, I will now proceed to consider the motion for a new trial.
On the trial of the cause, the counsel for defendant insisted, that by a just construction of the contract, Cincinnati was the place where the same should have been performed. And as plaintiffs had neither averred in -their declaration, nor shown in proof, that they were ready, either by themselves or agents at Cin
An attempt has been made to assimilate this case to a case standing on default. The reason assigned for this similarity is, that the plea was not sworn to according to the statute. But in this case, as well as every other where a plea is filed, there was an issue to be tried. That issue must be found either for plaintiffs or defendant. In a case standing on default, the jury have nothing to do but to assess the damages.
That the defendant did not rely for his principal defense upon the plea filed,, we may well conclude, from the circumstance that several notices are attached to and connected with the plea. The-principal object of pleading non est factum seems to have been to lay the foundation for giving notice, and to save the trouble of special pleading with technical precision. These notices are, in substance, that the defendant will, on the trial, prove performance, tender of performance, readiness and offer to perform, etc., and also that the plaintiffs refused on demand to deliver the goods and merchandise which had been selected, and that the merchandise delivered was of less value than eleven thousand four hundred and eighteen dollars and thirty-two cents. In sui^port of the notice connected with his plea, the defendant gave in evidence the facts particularly set forth in the ^motion, and the court instructed
The first position of the court was, that no continuance of possession for any time less than where the statute of limitations would operate to bar a recovery in ejectment, was sufficient to-warrant the presumption of a deed. The authorities cited by counsel show that continuance of possession for a less period of time, accompanied by other circumstances, might be sufficient to warrant this presumption. In Bealy v. Shaw and others, 6 East, 215, Lord Ellenborough says, “ I take it, that twenty years exclusive .enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of Parliament. But less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right.” From this I infer, that possession alone would not be sufficient to warrant the presumption, unless continued for twenty years; and, if so, the court were correct. The possession under Dayton had continued for more than twenty years, and this possession was accompanied by circumstances which would justify the jury in presuming, and they probably did presume, a title in that individual. But suppose the expression used by the court upon this point was not sufficiently guarded, or even that thei'e was a mistake as to the law, could this circumstance have made any difference in the final decision of the case ? If it would not, to grant the motion for a new trial would be worse than useless.
The next position assumed by the court was, that if the title was found to have been in Dayton, then no title would be sufficient to satisfy the terms of the contract, except a complete connected paper title from Dayton to the defendant, Graham. By the terms of the contract, Graham covenants that he will “ by a good and sufficient deed of conveyance and assurance in the law, well and sufficiently, grant, convey, and assure the aforesaid tract of land, with the appurtenances, unto the said Andrew Courcier and Frederic Ravises, their heirs and assigns, in fee simple, clear of all incumbrance, the title to the same to be indisputable.”
*The evidence adduced and admitted by the court showed a paper title from Dayton to Riddle, and from Yanhorne to the defendant. What was there to prove title in Yanhorne? Possession, and nothing but possession, unless it be the fact that he was
The deed from Riddle to Yanhorne was properly excluded. By the first section of the act providing for the execution and acknowledgment of deeds, passed February 14, 1805, it is provided that all deeds for the conveyance of lands, etc., “ shall be signed and sealed by the grantor, in the presence of two witnesses, who shall subscribe the said deed of conveyance, attesting the acknowledgment of the signing and sealing thereof,” etc. This law was in force at the time the deed from Riddle purports to have been executed. This deed was defective, inasmuch as it was attested but by one witness. The law was not complied with. It could convey at most only an equitable interest. The plaintiffs were to receive a legal estate, free from incumbrance, the title to which should be indisputable. This *deed did not convey such an estate; of course, it could not be received in evidence.
On the subject of damages, the jury wore instructed that the price fixed upon the merchandise in the covenant must be the governing principle, and that it was not competent for the defendant to contest the justness of the price. In this opinion it is insisted that the court mistook the law, and the case of Basten v. Butler, 7 East, 479, is relied on as an authority to show this mis»
The case of Basten v. Butler would, in some degree, compare with the case before the court were this a quantum valebant, and ■had there been no previous agreement as to the price of the goods. In this case, however, the goods were estimated at a specific price. This price was agreed upon by the parties. The defendant agrees to pay this price at a future period in land if he is satisfied with the valuation. The valuation is made, and he assents to it; but he fails to make the conveyance, and thus remains debtor for tho goods. No fraud was practiced; none was pretended. He agreed •to the price of the goods with a full knowledge of their character; and it is not competent for *him now to say that they were ■of less value. There must be judgment on the verdict.