Fiske v. Fiske, 37 Mass. 499

Fiske v. Fiske

37 Mass. 499 | Mass. | 1838

Shaw C. J.

delivered the opinion of the Court. This is an action of ejectment on a mortgage made by the defendants’ intestate to the plaintiff. It is conceded that the condition has been broken ; and the question is, for what sum the conditional judgment shall be entered. The facts are presented upon a report of an auditor, to whom by consent the subject has been referred.

The condition of this mortgage was, to “provide a horse foi said Margery to ride to meeting and elsewhere when neces $ary, find her fire-wood for one fire, to be drawn and cut a/ *503,the door fit for use, give her a good cow and keep said cow for her, during the natural life of her, the said Margery.”

Although the parties stood in the relation of mother and son, yet this mortgage is to be put upon the ground of contract made on a valuable consideration on the part of the mortager, and to enure as a legal and beneficial security to the mortgagee.

There is scarcely a more difficult branch of the law than that which regulates the rights and duties of parties to a contract for paying a debt in specific articles, and for delivering specific property at a future time. The difficulty is intrinsic, arising from the great variety of circumstances, attending the persons and the property and affecting the execution of the contract. The property may be bulky and heavy, or light and portable ; such as the vendor or contractor raises on his own farm, produces at his own workshop, commonly sells and delivers at his own warehouse, or otherwise in all respects. The parties may live near or remote from each other. Whether there should be a tender on the part of the party who is to deliver, or a demand by the party to receive, and when, where and how, in either case, is often a question of difficulty. The rules both of the common and civil law upon this subject are numerous and complicated. 1 Kent’s Comm. 505. Perhaps the only rule to be extracted from all the cases is this ; that a court will look at all the circumstances of the case, the nature of the property, the residence, occupations and relations of the parties, the usages of the place and of the business to which the contract relates, and ascertain by reasonable inference, what the parties must have understood and mutually expected at the time of the making of the contract, and then adopt that construction which will best and most nearly carry the contract into effect as they intended and understood it.

Considering the subject in this point of view, the Court are all of opinion that upon the terms of the instrument and the relation in which the parties stood to each other, there is nothing to warrant the construction contended for by the defendants, that the wood was to be furnished to the mortgagee only at the house on the farm on which she then lived, which was afterwards burnt. Even supposing that the mortgagee had a privilege under the will of her deceased husband to live in *504that nouse, which is very doubtful, as he had formerly eon t eyed the whole estate to his son by deed in his lifetime, still it was a privilege, which she might exercise or not, at her own choice. The effect of the condition then is to furnish her with fire-wood sufficient to keep one fire, to be drawn and cut a the door fit for use. The substance of the contract was, to furnish her with wood, at such place as she should make hsr home and place of residence, provided that it should be within a reasonable distance, regard being had to the distance at which such fire-wood had been and was customarily carried, for family use. The circumstance, therefore, that the particular house, in which she had certain privileges, was destroyed by fire, did not exempt the mortgager from the performance of his contract, provided that she was ready and willing to receive the firewood at a reasonable and convenient place. It sufficiently appears, from the report, that after the house was burnt in 1850, and. after the mortgagee took up her residence with her other son, she demanded of the mortgager to furnish her with wood, to which he answered that he was not obliged to furnish the wood at any place off of the farm ; and that she then demand ■ ed of him to furnish it at the old place, to which he replied that he would see about it, but he never furnished any. We think, that in point of law there was a demand by the mortgagee and a refusal on the part of the mortgager, to furriish the wood agreeably to his contract, and that the damage she has sustained must be considered as continuing until his death. It is no answer to this claim, that during this period she was sometimes living with her children at some distance, as she had pointed out a place, at which he might deliver the wood, and that, the place originally contemplated and within a reasonable and convenient distance. It would have been a compliance with the condition of his mortgage, if he had delivered it at that place. It is not competent for the defendants to say, that she had no need of it. She was entitled to it as of right, and it could not be legally or justly withheld from her.

The question in regard to the keeping of a cow, is attended with more difficulty. It appears from the report, that after about three years from the date of the mortgage, during which the mortgagee had frequently complained that her cow was im*505properly and insufficiently kept, she was actually compelled to sell her cow, for a small price, on account of her being thus improperly kept. This was in the autumn of 1824. It further appears, that in the spring of 1826, an attempt was made to arrange this matter between the parties, in the presence of the son of the mortgagee, and brother of the mortgager. The former claimed the value of the keeping of the cow, on the ground, that she had been obliged to sell the cow, in consequence of bad keeping ; and this reason, as we now find by the report, was well founded. The mortgager refused to allow any thing, insisting, that he had kept her as well as he kept his own, which might well be true, consistently with the well founded complaint of the mortgagee. The question then is, whether, in order to charge the mortgager with the reasonable value of keeping the cow, the mortgagee was obliged to purchase a cow and tender her to the mortgager to be kept; and the Court are of opinion that she was not. As the mortgager had failed to perform his obligation, and compelled the plaintiff to sell the cow ; and as upon an after application, she received no assurance, that in case of obtaining another cow, she would be better kept, and as he never afterwards offered to keep a cow for her, she was under no necessity, in order to charge him, to procure another cow, and tender her to him, at the risk of losing her for want of proper keeping. On these grounds, the Court are of opinion, that upon a breach of the condition, the plaintiff is entitled to recover the fair value of keeping the cow from the fall of 1824 to the time of making up the judgment.

The value of these items being reported by the auditor, the amount due will be computed upon the principles now stated, am] the conditional judgment entered accordingly.