1 Port. 437 | Ala. | 1835
This is an action of covenant, brought by Alexander Sommer-ville against William S. Jones, in the Circuit Court of Frank-
There were six pleas filed by the defendant below, to three of which issues were tendered by the jury; to the other three general demurrers were filed by the plaintiff below, which were sustained by the court, and which, among many others, are assigned for error in this court, and which bring before'it, the sufficiency of the declaration, and the construction oí the instrument sued on.
This instrument as spread upon the record, is in the following words : “ Articles of agreement made and entered into this eighth January, one thousand eight hundred and twenty three, between Alexander Sommcrville of the one part, and William tí. Jones of the other part, both of the county of’Franklin, in the state of Alabama, witnesseth — that the said IVilliam S. agrees to ship his crop of cotton, by the said Alexander, to New Orleans, supposed to be one hundred and twenty bales, at the risk of the said William S. The said Alexander agrees and bincls himself to pay and discharge a judgment, obtained against the said William S. administrator of H. Cox, deceased, in favor of John Davis, for about two thousand dollars. Out of the proceeds of the said cotton, (he said Alexander is to retain tlio amount of the said judgment, with the further amount of eighteen per cent, on the said judgment, and the overplus of said sale, (if any should he) after deducting the freight, &c. to be paid by the said Alexander to the said William S. But should the cotton not sell for the before mentioned sum, then and in that case, the said Alexander agrees to wait with the said William S. for the deficit, until the money is collectedfrom the administrator of P. Cox, the claim being now in suit, in which case judgment will be obtained in favor of said William S. at next April term of the Circuit Court of this county. It is further understood, that said .¡Ucxaudcr is to wait for the amount of the said William S’s ac
Signed, ALEX. SOMMERVILLE, Seal.
WM. S. JONES, Seal.
Test, P. Martin.”
The plaintiff below lias brought this action to recover the amount of the account referred to in the above recited instrument, which he alleges to have been fourteen hundred and fifty dollars, and he assigns as a breach on the part of die defendant, the non-payment of the said account, out of the judgment against P. Gox, which he avers to have amounted to twenty seven hundred and ninety'four dollars twelve and a half cents, and to have been collected by the defendant. He also avers that the defendant did not ship his whole crop of cotton to New-Orleaiis by the plaintiff, but only eighty’five bales, the nett proceeds of which lie avers to have been thirteen hundred and 'seventeen dollars thirty three cents, which he admits he has received. He docs not aver liow much more than the eighty five bales the defendant’s crop did amount to, and assign that failure as one of the breaches of the defendant’s covenant. He also avers that the defendant recovered a judgment against him, for a breach of his part of the covenant at the April term, 1825, of the Circuit Court of Franklin county for fifteen hundred dollars, but does not say in what that breach consisted ; lie docs not dver either a performance or readiness to perform, any one of the covenants on his part of the agreement.
On the part of the plaintiff in error, it is contended that, the covenants in this instrument are dependent; that the want of an averment by the plaintiff below, of performance by him of his part of the agreements, is fatal to this action ; and that no action will lie on the covenant to recover the amount of the account,
It is admitted that the question of the construction of the instru- , ment is fully presented by the state of the pleadings, for the consideration of the court.
To draw the true line between dependent and independent covenants, has often been a subject ofmuchembarrassmcnthi coarts of justice, not so much, it is said, from any peculiar difficulty in the principle which is contained, which seems clear and indisputable, but in the application of the principle to the particular case. The principle as laid down in the elementary boohs, is» “ that when there are several covenants, promises, or agreements, which are independent of each other, one party may bring an action against the other for a breach of his covenants, without averring a performance of the covenants on liis, the plaintiff’s pari, and it is no excuse for the defendant to allege in his plea, a broach of the covenants on the part of the plaintiff. But when the covenants are dependent, it is necessary for the plaintiff to aver and prove a performance of the covenants on his pari, to entitle him to an action for the breach of the covenants on the part of the defendant.”
The object which should actuate courts in the construction of this kind, as indeed, of all other kinds, of contracts, is to construe them according to the true intention and meaning of the parties at the time the contract is made. To discover that in-
A brief abstract of these rules may not be out of place in this opinion; and,
1. Covenants are independent when a day is appointed for payment, by the defendant, of money, or for his doing any other act, and such day is to happen before the thing which is the consideration of the defendant’s contract, was to be performed, because it appears that the defendant relied upon his remedy, and did not intend to make the plaintiff’s performance a condition precedent.
2. But covenants are dependent, when the day appointed for the performance ofthe defendant’s contract, is. to happen after the time when the consideration of the defendant’s contract is to be performed; in such case the plaintiff must perform his act, before he can. sustain his action, and such performance must bo averred.
3. When the plaintiff’s covenant constitutes only a part of the consideration of the defendant’s contract, and the defendant has received a partial benefit, and the breach on the part of the defendant can be compensated in damages’, the covenants shall be held independent, and an action may lie to recover damages, without averring performance by the plaintiff.- The defendant having received a part of the consideration for his agreement, it would be unjust, that he should enjoy that part without paying for it, because he had not had the whole. In this case, however, the plaintiff must aver performance of at least a part of that which, he covenanted to do, or that the defendant has otherwise had a partial benefit.
4. But when mutual covenants constitute the whole consideration on both sides, they are mutual conditions, the one precedent to the other, and performance must be averred.
5. So when two acts are to be done at the same time, on a day named or generally, by the opposite parties, neither can
And 6th. When there are mutual promises and agreements, yet if one thing be the consideration of the other, then the plaintiff’s performance must in general be averred. There are, howr ever, some cases, says Mr. Chitty, where it has been decided that when it appears that the defendant relied rather on the plaintiff’s agreement to perform his act, than his actual performance of it, it is not necessary to aver his performance.
With a1 view then to construe this contract “ according to the meaning of the parties and the good sense of the case,” let us look into its object and terms.
Jones, it appears, at the time.of this contract, was indebted in the sum of about two thousand dollars, as executor of one Cox, to one Davis, he was also indebted by account to Sommerville, to what amount does not appear by the instrument, these sums were due, and one of them in judgment, and he was in want of • money to pay them. He has cotton which must be sent to market, and he has a claim in suit against one P. Cox, upon which he expects to get judgment in about four months. In this situation, he applies to Sommerville to advance him the money to pay the judgment, and to give him time on the amount of his account ; and to secure him, and also to induce him to make the advance, he agrees to ship his cotton to New Orleans, which he supposes will amount to one hundred and twenty bales, through Sommerville, to pay him eighteen per-cent, on the amount of the advance to be made, and to give him a lien on the suit pending against P. Cox, in case the proceeds of the cotton shall prove insufficient to reimburse Sommerville in these three sums.
Sommerville agrees to make the advance, to receive and ship the cotton* to delay the collection of the account, and to look to the cotton and the claim' against P. Cox, to reimburse himself, for the advance, the eighteen per cent, and the amount of the account ; these are all the stipulations on either side to be done or forborne ; no day is fixed for either party to perform his part of
These two things' being then to be done “ in presentí” or “ generally,” and the residue of the stipulations on each side being necessarily contingent upon the performance of these two, it is proper to inquire under which one or more of the rules before adverted to, this contract properly falls,
It will not, I apprehend, be contended that it comes under either the first or second rules, as in the first, the money to be paid, or the thing to be performed, is to be at a day, before the consideration of the other is to be performed,'and in the other, it is after the day : here they were both to be performed “ in pre-sentí,” at the same time.
Does itfall under the third rule of construction ? Did the plaintiff’s covenant here constitute only a part of the consideration of the defendant’s contract ? Has lje received a practical benefit from its performance ? And can he be compensated in damages for the failure to perform the balance ? All these must be an_ swered in the affirmative, to bring the case within this rule.— What part of the contract then has the plaintiff performed ? It is not contended that he paid the judgment of Davis, or that he offered, and was prevented by Jones. Was this the moving consideration of the contract ? or was the delay in the payment of"' the account ? and is that delay, which is not alleged as part per-.
The illustration qf this rule, put in Saunders, is, that A, by deed, conveyed the equity of redemption of a plantation in the West Indies, with a'stock of negroes to B, in consideration of ¿£500, and an annuity of ¿£160 for life of A, and eovenant- " ed that he had a good title to the plantation, and was lawfully possessed of the negroes, and B covenanted that A, well and truly performing all and every thing therein contained,, he would pay the annuity. In an action for the annuity, the breach assigned was, that A was not lawfully possessed of the negroes, The plea was held ill, because by this defence, the want of title in any one negro would- bar the action, and it would be unreasonable to allow B to keep the plantation and stilhrefuse to pay for it, because he might not have a good title to every negro. For this he could he compensated in dam-,, ages. But suppose A had no title to the plantation, and to; tmiy a part of the negroes, would B have still been held to his.
That Sommerville contemplated this result when he entert ed into the contract, is hardly possible; that Jones did not, is morally certain ;■ that he delivered eighty five bales of cotton is admitted, and that Sommerville retained the proceeds until they were recovered at law, is not denied ; that he advanced any part, of the judgment of Darás against Cox, is not eon-tended, and that because he did not offset his account in the fiction of Jones for the recovery of the proceeds of the cotton, can have any hearing upon the construction which this court is to give of the contract, will not be contended. •
The case of Weaver’s adm'r vs. Childress, decided in this Court at the January term, 1831, has been cited by the counsel for the defendant in error, as sustaining their view of this case. In that case Childress made a covenant, in July, 1819, ' by which he sold a tract of land in Tennessee to the plaintiff’s intestate for eight hundred and fifty dollars, one half to be paid the first of Januarys 1820, and the balance a year thereafter, whonhe was to make a good title in fee simple ; and he covenanted to, put the plaintiff’s intestate into possession on or before January, 1820. In 1826 . suit was brought for the purchase money, and an averment was made that the defendant was put into possesssion of the premises according to the terms of the covenant, and he also averred
1. That the plaintiff below was not ready on the first of January, 1820, to make the conveyance; and 2. That on the day aforesaid, the plaintiff had not a gctod title to the lands in question; nor had he such right at the date of the corn tract or the commencement of the suit. On demurrer to these pleas, it was held by this court, that the contract came under the first and third rules of construction, laid down above. It is said by the court, “ that the terms of the covenant that the intestate should pay Childress one half of the purchase money twelve months before the title to the bond was to have been conveyed, and at the same time the former should receive possession of the land, is considered a full indication of the intention of the parties that their respective covenants should be mutual and independent, and that each relied on his legal remedy in case of failure. If they did not, why was the vendor to receive half the consideration money, long before the title was due ? Why was it agreed that the vendee should have possession before the title ? And why did he afccept it, and continue to retain it ? The presumption is, that the possession for several years was of considerable value, and that the vendee has had the benefit thereof. But if the vendor was entitled at any time to his action, for part of the purchase money, that circumstance would appear decisive of the principle that the covenants are independent.”— With that decision the court is still entirely satisfied, and they cannot perceive the analogy between it and the present case.
It was suggested in argument by the counsel for the defendant in error, that in this and all the previous suits in law and chancery, which have grown out of this contract (and it seems to have been a fruitful source of litigation,) the judges, , counsel, and parties, had invariably regarded these covenants as independent. Whatever may have been the case in this respect heretofore, the point is now distinctly presented to
The court has, however, looked into the record,with a view to discover in what way this point may have been disposed of before. It does not appear what w;ere the views taken by the Judges who granted and dissolved the bill of Sommer - ville for an injunction against the judgment of Jones, no rea- - sons appear to have been given, and therefore, no inferences can be drawn ; neither does it appear upon what reasoning the bill of review was granted. The Judge, however, who gave the final decree in the bill of review, does express his opinion: we have, however, looked in vain for his reasoning onthatpoint rhesays, “Itis clear that equity had no jurisdiction of the case made out in the complainant’s bill. The covenants contained in the agreement between the parties were independent, and the complainant, for a breach of the covenants in his favor, had an adequate remedy at law.” Had the Judge expressed the views which brought him to that, conclusion, they would have received the respectful consideration of this court.
In looking however, into the suit by Jones n.- Somtiierville, we find that the declaration, after setting out the contract expressly, avers that, in pursuance of said covenant, he had delivered his crop of cotton amounting to eighty seven bales, weighing twenty nine thousand nine hundred and ten pounds of cotton, charges the defendant with the breach in not paying the judgment in favor of Davis, and the measure of damages appears to have been the nett proceeds of the cotton.— This declaration is in strict accordance with those required in actions upon dependent covenants, and it is difficult to conceive how he could have sustained his action without those averments. Had it been otherwise, however, and were that case now before this court for argument and decision, with
In every aspect in which & majority of the court has been able to view this case, they have been led to the conclusion that the covenants are dependent; that for the want of the necessary avérments of performance by the plaintiff below, of any of his covenants, there is no legal cause of action set forth in the declaration, and therefore, that the judgment below must be reversed.
As this view disposes of the whole case, the court has not investigated any of the other points made in argument.
It is my misfortune to have arrived at a different concia-' sion in this case, from that just announced, in the opinion delivered by a majority of the court. As a dissenting opinion does not contain the law of the country, , the Judge entertaining it, need not, except on his own account, be very solicitous as to whether it contain the law of the case or not. I am induced only by my deference to the acknowledged legal abilities of my brethren, to give a brief summary of my view Of the character of this covenant; and of the sufficiency of the declaration, which asserts a cause of action upon it. Som-mervilie, as I apprehend, was bound immediately ; or as this court expressed it, in the case of the present defendant in error, against the present plaintiff,
This is my view of the rights of the respective parties ,to this covenant. . As to the particular action now brought upon it, whether the covenant be considered dependent or independent, I am unable to perceive any good objection against it, so far as the declaration alone is considered, however, the right of recovery mght be affected by facts disclosed in the subsequent pleadings. The averments in the declaration, are of the amount of the proceeds of the cotton crop of Jones ; the amount of the judgment of Davis, which Sommerville was to have satisfied ; the amount of money recovered by Jones in the suit against Eldridge, and the amount of the account due from Jones to Sommerville on the first ofi January, 1823. It also avers, though not at all material to the right of action, in my view of the covenant, that Jones had already sued him on the covenant, and recovered damages for his failure to satisfy the judgment of Davis. The breach alleged in the declaration, is the failure by Jones, to apply the proceeds of the money collected of Eldridge, to the satisfaction of his account, which is alleged to be still due and unpaid. By apt averments it is made to appear, that the excess of money recovered of Eldridge, over and above the discharge of the prior claims to which it was subjected by the covenant, is amply sufficient to have satisfied the account. The pleader very properly treated the covenant in this regard, as a collateral security for the account mentioned in it. It was in truth no more than a promise to apply to the discharge of ^ a separate and acknowledged debt, a certain contingent fund ; and the criterion of damages for the breach would be, whatever there was left of this fund, not greater than the account, after the satisfaction of the previous lien upon it. Ifc
As to the supposed defect in the declaration, in not aver-ing that Sommerville had waited for his account, according to the covenant; if it were necessary to aver this, which I do not admit, it being a matter strictly for defence, yet I deem it as necessarily implied in the allegation, that the account is still due ; as livery of seizen is implied by the allegation of a feoffment.
1 Saun. 480
1 Chit. 312.