Hamilton v. England
95 Ga. 693
Ga.
1895
Check Treatment
Atkinson, Justice.

The facts other than those herein recited are sufficiently stated in the official report.

1. We do not think that the contract set forth in the record, and which is made the basis of the action in this case, was a unilateral agreement, imposing an obligation to perform upon one of the parties only. If such had been their intention, it would have been only necessary for one of them to have signed the agreement. It is an instrument executed as to each of the parties under seal, and this, without more, imports a consideration for the covenants and undertakings of the respective parties as expressed therein or implied therefrom. The plaintiff, Hamilton, brought a suit against England, the other party, to compel a specific performance of his contract, and to compel a conveyance of. the premises upon the terms expressed in the contract. He alleged, at-the commencement of the suit, that he had performed and stood ready to perform his undertakings, and demanded the execution of the deed in compliance with the undertaking of the other pai’ty. England in his-answer set up a claim against Hamilton for the payment of the two sums first in the contract stipulated to be paid; and upon the filing of this answer, Hamilton amended his petition, and undertook thereby to withdraw from his-suit the prayer for specific performance, and inserted a prayer for the restitution by England of a part of the money paid by him in pursuance of the contract. If there was ever anything doubtful about the interpretation of this contract; if as to its true meaning it was in the first instance in the least degree equivocal, we think these doubts have all been resolved by the subsequent conduct of Hamilton. Illuminated as the dark spots in this transaction are by the evidence showing his recognition of the obligation of this contract upon him, of his acceptance of its terms, his in*697sistence upon its performance and execution by England,, there can be no doubt that the contract imposed upon him, as well as England, the performance of some duty.. In determining what this duty is, it is necessary to look, to the language of the agreement. His covenant was-to pay to England five hundred dollars on the first day of October, and fifteen hundred dollars on March 1st.. He in fact paid the five hundred dollars as-he undertook to do, and alleges in his prayer for specific perform.anee that he actually tendered the other fifteen hundred’, dollars at the time and place stipulated for the payment-thereof. So that, according to his understanding of this-agreement, he was at all events bound to pay the two-thousand dollars. We think that his construction was-the correct one, and that he was bound at all events by this contract to pay these two sums. The other payments contemplated by the agreement were left conditional upon the happening of a future event, and as that event did not transpire, Hamilton never became liable-for either of those payments. The judge and jury upon the trial of this cause took the same view of the contract touching the liability of Hamilton thereunder as-he did himself at the institution of the suit, and found accordingly; and the charge of the court construing for the jury the terms of that contract is in exact accord with the opinion we now express.

2. It was insisted by Hamilton that he was excused, from a performance of the contract, and that he was entitled to recover of England the money paid, under this stipulation of the agreement: “If payments are not paid at maturity, the contract becomes null and void.” He claims that the effect of this stipulation was-to make time of the essence of all of the covenants contained in the contract, and that a failure upon his part to meet any one of the payments provided for by the contract should operate to put an end to his obligation *698to perform. This we think is a strange view to take of that stipulation in the agreement. It is a well settled and universally recognized rule of law, that no man can profit by his own wrong; and that ho man ought to be permitted to profit by a failure upon his own part to perform the obligations imposed upon him by the terms of an .agreement to which he was himself a party, is a principle equally well founded both-in law and morals. The obligation imposed by the agreement was, that Hamilton should pay at the specified times the two several sums as stipulated in the contract; that was one of the obligations that he assumed and upon a valuable consideration; .and yet we are invited to so construe the covenant as to time as not only wholly to excuse him from the future ■covenants, but likewise to restore to him moneys expended in the execution of covenants already performed. In other words, he is to be not only excused, but paid a premium upon his own default. We do not think this covenant, in the light of this agreement, bears any such interpretation. On the contrary, we think the rational ■construction to be placed upon this contract is, that a failure to perform within the time limited upon the part •of Hamilton would excuse a subsequent non-performance upon the part of England; but we think, to hold that, though England were willing to waive the forfeiture upon his part, Hamilton, because of his own default, nevertheless stands absolved of all obligations under the terms of his contract, is to do violence to the most obvious rules of law and the plainest principles of justice.

Let the judgment of the court below be Affirmed.