55 Ind. 551 | Ind. | 1877
This action is founded on a promissory note, made by the appellants to the appellee.
The answer to the complaint is as follows:
“ That said note was executed by the defendant Silas Hickman, as principal, and by the defendant George W. Hickman, as surety for the said Silas, in consideration of the rent of a farm owned by the plaintiff, which he rented to the defendant Silas Hickman, by articles of agreement made between the said plaintiff and said Silas, on the same day the note was executed, and as a part of the same agreement, by which articles the plaintiff', in consideration of the obligation of the defendant Silas, therein-after named, agreed to rent to the said Silas the farm then owned by the plaintiff, in Egypt Bottom, Switzerland county, Indiana, for one year, commencing on the 1st day of March, 1873, and ending on the 1st day of March, 1874. And the plaintiff" further agreed to put a new fence on his upper line, commencing at his barn, running thence north to the section line, said fence to be built by the 1st day of March, 1873. And the defendant Silas agreed, that he would return said farm to the plaintiff in as good order as he received it, ‘ accidents by the elements exceptedto haul and spread upon said farm the manure from around the barn on said farm; to deliver said farm to the plaintiff, on the 1st day of March, 1874, and to execute to the plaintiff his note for one thousand one hundred and twenty-six dollars and sixty-six cents; that said note was given for no other or different consideration, in whole or in part, whatever. And the defendants aver, that the plaintiff, on the 1st day of March, 1873, did not deliver to the defendant Silas the possession of said farm, or any part of it, although he demanded of the plaintiff the possession of
A copy oí the agreement was made an exhibit with the answer.
The plaintiff replied to the answer:
Eirst. The general denial; and,
Second. As follows: “That before the first day of March, 1873, he had rented a house in the town of Yevay, Indiana, for a year, paying in advance one hundred dollars thereon; and before the 1st day of March, 1873, he, with his family, had moved out of said house on said farm, with his household furniture, and was then and there ready and willing to give to the said Silas possession of said house and^farm, on said 1st day of March, 1873, if he would accept the same; that he had removed the stock off of said farm, and as to the corn in the barn, plaintiff called on defendant Silas, one week before the 1st day of March, 1873, and told him said corn was there, but that he, the plaintiff, would have all the same removed off of said farm, before the first day of March, 1873, if the said Silas insisted, but would like to leave the corn in the barn until the weather was more favorable for hauling it
There is a third paragraph of reply which we do not set out, because we think the question decisive of the case arises upon the second paragraph.
The defendants filed a demurrer to the second paragraph of reply, alleging as ground the insufficiency of the facts therein averred. The demurrer was overruled, and exceptions reserved. Issues were joined, a jury trial had, a verdict returned in favor of the plaintiff for one thousand two hundred and twenty-seven dollars and ninety cents, and judgment—over a motion for a new trial and exceptions taken—rendered upon the verdict. During the trial, the court refused certain instructions asked by the defendants, and gave certain instructions asked by the plaintiff, over the objections of the defendants. To these rulings the defendants reserved exceptions; but they only raise the same question presented by overruling the demurrer to the second paragraph of reply. The solution, therefore, of the one question, as we have remarked, will decide the whole case.
The making of the note sued on and the execution of the agreement set up in the answer were simultaneous acts, done by the same parties, about the same subject-matter ; the note and the agreement, therefore, belong to the same transaction, and, taken together, constitute but one contract, as much as if they were written on the same piece of paper. This is a principle so well established that it needs no support from authority.
A party can not recover on a special contract which he has failed to perform on his part. “ It is a good defence to an action on a contract, that the obligation to perform the act required, was dependent upon some other thing which the other party was to do, and has failed to do. And if, before the one party has done any thing, it is ascertained that the other party will not be able to do that which he has undertaken to do, this will be a sufficient l’eason why the first party should do nothing. And this excuse is valid, although the omission by the other party to do the thing required of him, was produced by causes which he could neither foresee nor control. And if it is provided that the thing shall be done ‘ unless prevented by unavoidable accident,’ the accident to excuse the not doing, must be not only unavoidable, but must render the act physically impossible, and not merely unprofitable and inexpedient by reason of an increase of labor and cost.” 2 Parsons Con. 675, 676.
“ Every lessor binds himself to give possession, and not to give the party to whom he demises a mere right to take possession from a wrong-doer by an action of ejectment; and every lessee binds himself to accept possession and pay rent. If a party has agreed to take a house from a particular day, provided certain things are before then done by the
Upon principle, and under these authorities, we think the second paragraph of reply is defective in several points. It shows that the appellee did not deliver possession of the premises to the appellant, according to the stipulations in the lease; and therefore that he first broke the contract. We need not decide whether the rise of the Ohio river, by which the appellee was for a time prevented from completing the fence, was the act of Godwhich would excuse the appellee from making the fence, because if it had been such an act, he could not compel the lessee to accept the premises upon any other terms than those provided in the lease. How far the rise of the river would excuse the appellee, if he was sued for a breach of his part of the contract, is a question not before us. But we are very certain it does not excuse him from delivering the premises to the lessee according to the terms of the lease. If a landlord should let a house for
There is a class of cases, however, where the agreement does not go to the whole of the consideration on both sides, and where the supposed condition is distinctly separable from other parts of the agreement, so that much of the contract may be performed on both sides, as though the condition were not there, it will be held as a stipulation, the breach of which only gives an action to the injured pai’ty. This doctrine originated, we believe, in the case of Boone v. Eyre, in the King’s Bench, Easter term, Geo. III. See, 1 H. Bl. 273, note a., and 2 W. B1.1312. But, upon a close examination of the case, it will be noticed that it was put upon the ground that the covenants had been in part executed; Ashiiurst, J., declaring, that in such case's, “ There is a difference between executed and executory covenants.” And the same principles were declared by Lord Kenyon in Campbell v. Jones, 6 T. R. 570; Pickens v. Bozell, 11 Ind. 275; Boyle v. Guysinger, 12 Ind. 273; Morton v. Kane, supra. But we are not embarrassed by these decisioxxs ixx this case, because the agreements go to the whole considex-ation on both sides—the lease was the considex’ation of the note, and the note was the consideration of the lease ; axxd no part of the contract, on either side, was ever performed.
There is another class of cases wherein the condition precedent has been pax’tly perfox’med by one party, whereby
All the authorities cited by the appellee, we believe, belong to this class of cases; at least none of them invade the principles to which we adhere in the decision of this case.
The judgment is reversed, and cause remanded, with instructions to sustain the demurrer to the second paragraph of reply.