26 Vt. 452 | Vt. | 1854
The opinion of the court was delivered by
I. We have spent no time upon the question of variances between the declaration, and the contract, since the defendant’s counsel admit, that o'ne of the counts in the declaration is unobjectionable on that ground, and more perhaps, if the contract is construed to contain mutual promises, which is the next point made. If one count is good in this respect it is sufficient.
II. We think the contract is somethingmore than what is termed a mere refusal of the property by defendant, leaving it optional with plaintiff, whether he will take the property, within a certain time or not. Such a contract, unless upon some other consideration, or under seal, would probably not be regarded, as valid, in law, for want of consideration. But it was intended, by the parties to this contract, as appears by its very terms, to have it upon consideration. And it seems to us, that the contract, in termsj con
III. But, by the terms of the contract, as it seems to us, the delivery of the stock, and the conveyance of the property, stipulated to be conveyed, on the part of the defendant, were to be concivrrant acts. And although the plaintiff by the terms of the contract, was first to move in the premises, so far as to manifest a readiness to convey, we do not deem it reasonable, inasmuch as the one promise is the entire consideration of the other, to hold, that either party was bound to absolutely convey his property, except upon the conveyances, by the other. The import of the contract is, that each shall convey to the other, at the same time, but the plaintiff has the privilege of naming any time, before the first day of July next, and if he do not, it shall be done upon that day. In regard to this class of contracts, it is a settled rule, that neither is obliged to convey absolutely, if the other declines conveying, on his part. The other party is then restricted to his remedy in damages. But the party claiming damages must either show a readiness, and offer to perform on his part, or else that he was excused therefrom, by the consent or conduct of the other party. We conclude, therefore, that the plaintiff was not bound absolutely to part with his property, except upon the receipt of a conveyance from defendant. Such a rule of construction would make the contract unequal and unjust and we ought not to give the contract such a construction, unless its terms so clearly speak, which is not the case.
The plaintiff then, as it seems to us, was not bound to part with the title of his stock unless he obtained the stipulated pay. It was not a case of credit, or independent promise on either part. And the proof does not show any consent by plaintiff to part with the title of the stock, or of the defendant to receive it. Wedgewood, the person to whom the certificates were sent, was at most amere stakeholder, or agent for both parties, but strictly he was the plain
IV. But the important question in 'this case is, whether the plaintiff can recover at all. The finding of the jury negatives all fraud or intentional misrepresentation, on the part of the plaintiff, or even knowledge of the circumstance, which it is claimed should exonorate the defendant from his contract. The only question, then is, whether the parties were under such a mutual misapprehension, in regard to the actual state of the subject matter of the contract, at the time of entering into it, as will relieve the defendant from the obligation of it. This is a familiar ground of relief from the performance of contracts in a court of equity, and as a general thing confined mainly to that forum. But in some few cases it has been allowed, as a defense, at law. The case of Ketchum v. Catlin, 21 Vt. 191, has perhaps gone .to the full extent of such'relief, in a court of law, and may be regarded as laying down the law, as it now stands,(in regard to defense at law to contracts, on the ground of mutual misunderstanding in regard to the state of the subject matter at the time. And this case goes upon the ground, that to constitute a defense at law such subject matter must be so changed, at the time of the contract, without the knowledge of either party, as not in any sense to answer the purpose, for which the contract was made. This mode of defense goes upon the ground, that if the party buys one thing, or a thing, in one state, he is not bound to accept of a different thing, or the same thing, in a different state. If property is sold, as being in existence and in fact has been destroyed, or changed state, the sale will be inoperative.
But any accidental occurrence, not directly affecting the state
So too, stocks may be affected, by general legislation, by the granting of other charters, by governmental negociations, by war, or peace, by the management of the corporations, by the result of an election, by the death of an important financial agent, and by a thousand other accidental matters. The question is, whether such mere accidents, not affecting the inherent quality of the stocks or essentially their actual value, can be said to create such a change of state, as to justify the vendee in refusing to go forward with his contract. I have not been able to find any such case, and the books are filled with those of an opposite character.
Had this vote of the directors cancelled, or annihilated the stock, it would no doubt have been a good ground of defense to this action, within the principle of the best considered cases upon the subject. But so far from that, it did not affect the stock in any sense, except incidentally, by its increase at alow rate. This had three accidental effects upon all the stock of the company. 1st. It showed the company to be embarrassed, if not desperate, which of itself had a tendency to lessen the market value of the stock,
The length of time given the plaintiff to deliver the stock must have involved the hazard of the directors doing many things, which might affect the stock, and indeed, every legal act certainly, and illegal acts would not bind the stockholders. We do not see how this will form ahy defense to the suit, there being no fraud or misrepresentation. '
Judgment reversed, and case remanded.