45 Ky. 612 | Ky. Ct. App. | 1846
delivered the opinion of the Court.
This action of covenant was braught in 1833,- by Mil-]®r against Win.- S.- Hunter, upon an instrument of wri- ^ 1 ting, in substance as follows: “Articles of agreement made this 2d day of September. 1817, between ■ Francis-Miller of the county, ,&c.- of the one part, and William S; Hunter, agent for Thomas Todd and Mary Hunter, representatives of William Stewart, deceased, of the other part, witnessetb: that whereas the said Stewart, on the Iñth'Of May, 1785, made an entry, &e„ (which is recited,) which, entry was surveyed and patented, &c., and suit- now pendingagainst John Scott, Francis Miller, &c. Now i& order to compromise and adjust said claim, so far as it interferes- with said Miller’s claim, supposed to be about.22® aeres, the said Miller promises and agrees to pay to the agent aforesaid, the sum of $600, four months from this date, upon the payment of which sum the representatives of said William Stewart, deceased, are to-convey to;,the said Francis Miller the claim of said Stewart to the extent of his interference, should it exceed 220 acres-, Miller lev pay in. proportion for the surplus.- Signed,- his Francis X Miller, [Seal.] mark
Wnir S. Hunter, for [ Seal. \
Thomas Todd and Mary Hunter.”
& memorandum signed in the same way, imports that it is understood that the claim-of Stewart is tobe conveyed, defending only against those claiming under him of bis representatives.
The first count in the declaration averred that the interference was 3231 acres, and that on the 20th of May, 1818, (four months and- eighteen days after the stipulated'
In June, 1834, the defendant filed a plea, alledging that on the 15th day of July, 1819, the representatives of William Stewart did, by deed duly executed, convey to the plaintiff the claim of Stewart, to the extent of the said interference, &c. This plea was, on demurrer, adjudged bad. And it is now contended, that as the demurrer was not withdrawn nor any further defence made by the defendant, the demurrer should be considered as bringing up the declaration, and that if that should be deemed bad upon demurrer, the judgment for the plaintiff, rendered by default and upon inquiry of damages, should be reversed. But although the principle involved in this position is correct, yet as it appears from the record that the demurrer was sustained and the plea adjudged bad when there was but one count in the declaration, and that afterwards, on leave to amend, the second count was filed without objection, and the defendant never appeared nor took any step after his plea was overruled, and there was no attempt to make it .applicable to the second count, it seems to follow that the second count cannot be considered as having been before the Court upon the demurrer. But as there was no plea nor appearance to the second count, and the judgment was not rendered
The contract being executory on both sides, and the performance on the part of the plaintiff being the first act> anb being the consideration of the act to be done on tjqe other side, the plaintiff, in order to entitle him to . 1 his action, must aver performance, or something equivalent to it. He relies upon actual performance. But first, be bid not pay on the day 'appointed by the contract; and if it be conceded that the acceptance of the money or ot even a part ot it afterwards, would imply a waiver by the other party, as to the time of performance, and in consequence thereof, a subsequent performance should place the plaintiff in the same condition with regard to his right of action, as if he had performed at the' day, still the implied waiver as to time cannot imply a waiver of any thing else, and the plaintiff is no more entitled to his action without full performance of what is due from him by the legal effect of the contract, at the time of the postponed performance, than he would be entitled by a partial performance at the appointed day; unless indeed, he could rely upon the acceptance of something less than what was'due, as full satisfaction of the greater sum, oías being a waiver of full performance, which, as in the case of waiver as to him, should give the same effect to a partial performance as if it had been full. Certainly it would be going very far to allow the written contract ánd the legal duties created by it, thus to be changed and dispensed with by parol. But if this could be done, we are satisfied that the mere acceptance of a partial payment, after the day, or at any time, though the payment be requested, does not, in pleading, imply a dispensation as to the residue. But the averment of such dispensation or • waiver should be clear and explicit. The plaintiff mayjjjhave paid a certain sum, part of what was due, as full satisfaction of the whole, and yet it may not have been received as full satisfaction. And if so, the condition was not fulfilled on which performance on the other part became due; and there was no default and no cause
Then the plaintiff having bound himself to pay a sum of money on a given day, he was bound, in case of delay, to pay interest on the sum due until payment was made, and especially if there was no waiver. But the interest on $600 for four months and eighteen days, is about $13 75, making $613 75 due on the 20th May, 1818, without reference to the surplus which, as averred in the first count, was worth more than ten dollars. . Upon the firs’t count, therefore, there was a deficiency of about $14 in the sum paid, and upon the second count, which does not disclose the fact of a surplus, there was a deficiency of about four dollars.
The smallness of these deficiencies, and especially of the last, might perhaps, authorize the inference as a matter of evidence, that they had been waived or dispensed with, but this inference of fact, which might or might not be true, cannot be brought in aid of the averment in the declaration, any more than the inference arising from lapse of time or other circumstances, that the deed made in 1819, had been accepted, can aid the plea which fails to aver that fact. Under the most liberal rule, the declaration should show either full performance or that which is equivalent to it. Could a defendant owing $500, plead simply that he had paid, or that he had tendered $490 or $496, in full discharge and satisfaction of the debt? Could such payment be made effectual .even by alledging an accord? Could it, at any time, be made effectual as a bar, without alledging explicitly, that it was received in full satisfaction? We suppose it could not, and therefore, conclude that there is no sufficient averment of performance on the part of the plaintiff in either count.
The second count, it is true, after stating a payment of $610, in full satisfaction, &c., avers, what was perhaps intended to excuse a non-perform'ance on the part of the plaintiff, that Stewart’s representatives had no claim to any land interfering with the land or claim of the plaintiff. This matter, however, would seem to be settled,‘if not by the payment of the $610, at least by the recitals
We aie of opinion, therefore, that the declaration shows no cause of action, and the judgment must,[on that ground, be reversed.
But there are other and more important objections to the judgment, than those which have been stated: 1st. The defendant, Hunter, having died, a scire facias to revive the suit, was served on his administrators in 1836. But there does'not seem to have been any order of revivor against them, nor any order whatever in the suit, until June 1841, when the record states that “on motion of W. M. and M. F. M., executors of the plaintiff who has departed this life, it is ordered that, this suit be revived in the name of said executois and it was then continued. There was no service of this order or of any further process on the administrators of Hunter, nor any other step in the suit until March 1844, when the record says: “The plaintiffs came by their attorneys, and the defendants though duly served with process, failed to appear, though solemnly called ; on motion of the plaintiff,” &c.,
2. -Rut a more radical objection ihana-ny of these, has been made by the assignment of errors, and as it presents -a question which must arise in the future progress of the suit, it must how be decided. It is contended that by ■fair construction of the writing sued on, William S. Hunter was not personally bound in the stipulation for the conveyance of Stewart’s title, but that it was intended to be, and should, therefore, be understood to be, the stipulation of Todd .and Mary Hunter, for whom as their agent, Win. S. Hunter contracted.
It is clear from the terms of the writing, that W«n. -S, Hunter had not, and did not pretend to'have the tilde which was to be conveyed; that h-e did not assume t-o have power to convey it, nor undertake that he would . , ... _ . , convey it, either as principal or agent, it is clear, also, tha'tin making this contract, Wm. S. Hunter assumed to actas the agent of others and for them. And as he taires ° this character, both m the body -of me instrument, md in fbe signature to it, and wherever he is mentioned Or -refer-red to, we must in construing the instrument, -assume that be was in fact, and for the purposes „ , , ,. , „ , i of the contract, the agent ot those tor whom he professed to contract; and with power to bind them to the act which, according to the contract, was to be perform•ed by them. Now it is to be observed, that the only stipolation on the part of Stewart’s representatives or their agent, is for the doing of -an act by them, whkfe they
The only legitimate object of all rules of interpretation and construction, is to ascertain and effectuate the ■intention of the parties. When that is apparent, the words must, if possible, be so understood as to give effect to the intention.. We recur to the instrument in order to ascertain whether the stipulation for a conveyance by the representatives of Stewart, is to be understood as a Covenant by them for their own act to be done, personally, or a covenant by tbeir agent, that they shall do the act. We find that the instrument contains, -as to this point, no formal word of covenant or agrément by any one, but while Miller expressly promises to pay, &e., the writing only declares that on payment being made, the representatives of Stewart are to convey, &c., which means nothing more nor less than that they .“are bound to convey,” or “will convey,” or “agree to convey,” If either of these forms of expression had.been used, there could not have been a question, but that the covenant was intended and understood to be the covenant of the representatives of Stewart, made for them by their agent, and. that he was to be bound only for the sufficiency of ■ his authority. And as this intention would appear clearly on the face of the instrument, there would be no room for contention, and the covenant must have been considered as the sole covenant of the principals, binding exclusively upon them ; unless it could be said that this obvious intention of the parties must be frustrated, and the express language of the covenant wholly turned from its appropriate meaning, by the style or caption of the instru
The rule is, that the attorney should act in the name of his principal, and not in his own name merely: (Comb’s case, 3 Coke, 76, pt. 9,). There is no inflexible rule, as to the mode in which this is to be done; and when both names are used both in the caption or body and signature of the instrument, it is a question of intention and con- . i 1 • i struction, whether the act is done or the engagement made, in the name of the principal or of the-agent. The terms of the covenant itself are commonly decisive as to intention. The description in the caption and the mode of signature, are referred to, either as aids in discovering the intention, or as determining whether the form of the instrument corresponds with this intention, so as . 1 , , that it may be carried out. If in view of all its parts, the instrument can be regarded as the deed or covenant of the party intended to be bound, it must, on principle, be so regarded. There is, as we believe, no difference of opinion with regard to the propriety of these positions, though there doubtless may be in their application. The caption of this instrument contains no stipulation or agreement, unless it be that Hunter is agent, &c. as described. It merely states that the agreement made between Miller on the one side and Hunter, agent, &c., on the other, witnesses or establishes what follows : that is, that Miller promises to pay, &c., to the said agent, upon which the principals are to convey, &c. To make this a personal covenant on the part of Hunter, that the principals shall convey, it is to be assumed that there is an elipsis to be supplied as follows: upon which “the said Hunter or the said agent undertakes or promises,” that the principals shall convey, or some phrase of similar import. It is said that such words should be supplied, because the instrument imports an agreement between Miller, and Hunter, agent, &c. But can any thing more be
If cannot escape notice, as tending to justify the conclusion that it wasnot intended, that there should be a personal covenant on the part of Hunter, that while Miller ex-presslypromised to do what was to bedoneonhispart, viz: to pay the money, the mode of expression is immediately and decidedly changed in stating what is to be done on the other part. The duty on Miller’s part, and the person who undertakes its. performance, are notexpressed
The case of Stackpole vs Arnold, (11 Mass. Rep. 37,) decides that a note signed “Z. Cook,” and another signed “Cook & Foster,” without reference either in the body or signature of the notes, to any other person as principal, could not, by averment and proof, be made the notes of Arnold. .But it is admitted that if signed “Z. Cook for J. Arnold,” and “Cook fy Foster for J. Arnold,” they might have been the notes of Arnold.
In the case of Wilks vs Back, (2 East, 142,) it was decided that Brown was bound by a submission bond signed in this manner: “For James Brown, Mathias Wilks, [l. s.]” Grose Justice, alluding to the rule that the attorney must execute his power in the name of his principal and not in his own name, said “here it was so done, for where is the difference between signing J. B, by M. W., his attorney, (which must be admitted to he good,) and M. W. for J. B.; in either case the act of sealing and delivery is done in the name of the principal and by his authority; whether the attorney put his name first or last, cannot affect the validity of the act done.” And the other two Justices expressed substantially the same views.
There'have been, it is true, several cases in this Court, in which upon a comparison of the terms used in the body of an instrument, with the mode of execution, the obligation has been decided to rest upon the agent and not upon the principal. Perhaps the strongest of these cases is that of Offutt vs Ayres, (7 Monroe, 356.) In that case ■it was decided, the Chief Justice dissenting, that the note was the obligation of W. B. Ayres, and not B. Ayres; it was of the following tenor: “I promise to pay S. 0. $114, for the hire of Harry.” Signed, “For B. Ayres, W. B. Ayres'.” The question was, who promised, or to' which of the persons named at the bottom, the pronoun I, in the body of the note, referred; and upon grammatical construction, it was decided that W. B. A.yres promised to pay for B. Ayres, as he might well do. But there was nothing in the body of the note to show that W. B. A. acted as agent, or that he professed to bind B. A. to pay, or lhatB. A. was to pay; and the signature is not entirely unequivocal. Here every thing is different, Hunter
But the more -recent case of Cooke & Co. vs Sandford, •also in this Court, decides that a note of the following tenor: ‘“We promise to pay to J. S., «^e. Signed V. M. for Cook & Co.” was upon its face, the note of Cook & Co., (3 Dana, 237.) And in the case of Wright, &c. vs Roberts, (manuscript opinion, 1845,) where the note was of this tenor; “I ha.ve bought of Wright & Ward from 8 to 10 tons of hemp, at $2 50 per hundred, one load to be delivered to-morrow, the balance when notified, to be paid for on delivery. Signed, W. B. Roberts,
Agent for O. F. PaymF
The action was brought against Roberts, and on demurrer it was decided to be the covenant of the principal and not of the agent. In the case of Owings vs Grubbs, (6 J. J. Marshall, 31.) where the writing was signed '“For Tho. B. Owings, James Grubbs,” Grubbs was allowed, oh the plea of non esi factum, to introduce pa-rot evidence that the instrument was delivered as the deed of Owings, and not-of himself. And evidence of á similar import was allowed in the case of Webb vs Burke, (6 B. Monroe, 51,) where tfee note was signed,
John B. Burke, agent for Samuel Burke.
We would remark, opon the -case of Owings vs Grubbs, that as the note imports merely an acknowledgment of a. certain sum feeing due to IR, H. Owings, for value received, and there is no express promise to pay, it might, and according-to thecaseof Wright vs Roberts, should, upon demurrer, feave been held to fee the note of T. B. Owings, the principal, since the'debt was acknowledged to be due from him, and the implied promise to pay would be by him, if the agent had authority to bind him by the acknowledgment.
The case of Wright vs Roberts goes upon the ground, that there is no -express promise fey the agent, to pay; that the payment was impliedly to fee -made fey the princi
In this case there is no promise or covenant by th© agent. The conveyance is expressly to be made by the principals, and the covenant to convey, if not express on their part, should, in pursuance of the manifest intention, be implied against them and not against the-agent. The circumstance referred to, that whether this covenant has been literally performed or not, the lapse of time authorizes the presumption that the covenant itself has brought substantially the same benefit that its performance would have done, though entitled to no weight in the construction of the instrument, may suggest the reflection that our decision of the law is not at war with the apparent justice of the case.
On the whole, therefore, we are of opinion that Hunter was not personally bound by the stipulation for convey» anee, but only for its validity against-his principals; and that on this ground also, the judgment is erroneous.
Wherefore, the judgment is reversed and the cause remanded for further proceedings.