23 S.D. 548 | S.D. | 1909
This action was brought by plaintiffs and appellants to seek to recover damages for breach of contract for the sale and purchase of land; it being alleged by plaintiffs that they entered into a written contract with the defendant to sell to defendant certain lands, that they had at all times been read}'- and willing to carry out 'said contract, and that they had tendered ab
While there are numerous assignments of error, yet, under the view which we take of the construction which should be .placed upon the contract, it will be necessary to consider but one feature of the case. When plaintiffs rested their case in chief, the court, on defendant’s motion and over the objection of the plaintiffs, directed the verdict in favor of the defendant. Tire theory upon which the court made its various rulings, and which is relied upon by respondent, is that in the contract in question, the covenant to make the .payment ,of $5,000 and give the note and mortgage, was not independent of, but was dependent on, plaintiffs’ covenant to furnish
Plaintiffs seem to rely entirely upon the word “first,” found in the said contract wherein it provides 'that, if the defendant should first make the payments, etc., then plaintiffs would convey and furnish abstract. We do not think, however, that the use of this word is controlling. The universal rule laid down under the authorities concerning the construction of covenants in contracts, as to whether they are dependent or independent, is that the relation of covenants is to be determined according to the intention and meaning of the parties as the same appears in the instrument, and by the application of common sense to each particular case, to which intention, when once 'discovered, all technical forms of expression must give way. 11 Cyc. 1053; 29 Am. & Eng. Ency. of L. 604. It is further held under the authorities that in case of doubt the courts will construe ,such covenants as dependent, rather than as independent. In the case of Bank v. Hagner, 1 Pet. 464, 7 L. Ed. 219, the Supreme Court said: “In contracts of this description, the undertakings of the respective parties are always considered dependent, unless a contrary intention clearly appears. A different construction would in many cases lead to the greatest injustice, and a purchaser might have payment of the consideration money forced upon him, yet be disabled from procuring the property for which he paid it. Al
In the case of Parker v. Parmele, 20 Johns. 130, 11 Am. Dec. 253, the contract provided for certain payments to be made, and then the vendor covenanted that upon the full performance of the covenants as,to payments he would execute to the defendant -a good warranty deed of conveyance of the premises, and the court held the covenants dependent.
In the case of Arnett v. Smith, 11 N. D. 55, 88 N. W. 1037, cited in appellants’ brief, the court held the covenants of the con
The appellants contend that there is a distinction between actions brought to recover the contract price and actions brought to recover damages for breach of contract, and that, while full performance of the covenants on the vendor’s part must be pleaded and proven in an action to recover the contract price, yet that the same rule does not hold where the suit is brought to recover damages. In this .appellants are certainly wrong. The action for damages cannot be brought until the defendant is in default, any more than to recover the purchase money. It certainly would be an anomaly if one, before he had placed himself in a position where he could say to another, “You are in default, and are liable on your covenants to pay the amount provided therein,” still could say, “Although not in default, you have broken your contract and are liable for damages under such contract.” In the case of Shinn v. Roberts, 20 N. J. Law, 435, 43 Am. Dec. 636, the court, citing the case of Bank v. Hagner, supra, and other cases, says: “The vendor
The judgment of the trial court, and the order denying a new trial herein, are affirmed.