Plaintiff in this case is the son of defendant and of defendant’s former wife, Florence E. Knox, who deceased on October 25, 1946. In 1940, or 1941, because of difficulties not material in this case, Mr. and Mrs. Knox separated and did not live together thereafter. It does not appear that divorce proceedings were instituted by either. They owned a farm in Berrien county, comprising approximately 90 acres, as tenants by the entireties. Mrs. Knox remained on the farm, receiving no direct support from defendant. At the time of her death in 1946 she was the owner of an estate, consisting largely of property that she had inherited, slightly in excess of $25,000. In accordance with her will the proрerty was assigned to plaintiff and to his sister.
For some years prior to her death, plaintiff assisted his mother financially, paying bills incurred by her for medical attendance. He also paid her funeral expenses. For such expenditures he did not obtain, or seek, reimbursement from the estate. No bills of the character referred to were paid by defendant.
Following the death of Mrs. Knox, plaintiff endeavored to persuade defendant to reimburse him
Plaintiff agreed to deliver to defendant’s attorney the warranty deed to the farm in Bеrrien county, presumably the instrument of conveyance by which title to the property was vested in Mr. and Mrs. Knox, to make a quitclaim deed, to be signed by himself and his sister, of all right, title and interest, in and to said farm, to deliver to defendant an inventory of personal property on the farm, and to pay for any such property belonging to defendant that he could not deliver. The agreement stipulated that any crops raised during “the past current year,” or money derived from the sale thereof, or from the sale of stock, should belong to defendant. Delivery of a bill of sale of certain specific items of
It appears from the record that the certificates of stock and the insurance papers referred to in the agreement were received by defendant through his attorney. Plaintiff and his sister signed a quitclaim deed of any interest owned by them in the farm, but the record does not show that such deed was turned over ■ to defendant. The latter denied receiving the warranty deed referred to, and claimed that it was his understanding that it could not be found. Plaintiff sought to reach an accounting with defendant with reference to the proceеds of any crops or personal property to which the látter was entitled. The conclusion is fully justified that defendant refused' to cooperate with regard to any inventory or accounting 'and further refused to perform under the agreement into which the parties had entered.
Under date of December 29,1949, plaintiff brought an action in circuit court against defendant, basing his alleged right to recover on the written undertaking that the parties had made. In his answer, to the declaration, defendant alleged in substance that the writing on which plaintiff relied was not a binding agreement because plaintiff. had not signed it, and, further, that plaintiff had not performed his obligations thereunder. On the trial of the case before a jury plaintiff and defendant testified, and at the close of the proofs each moved for a directed verdict. It appears, however, that counsel on both sides presented to the court written requests to charge. As to the effect thereof, see
Arnold
v.
Krug,
The trial judge came to the conclusion that there were no issues of fact to be submitted to the jury,
Examination of the testimony of the parties on the trial discloses that they were in substantial agreement as to what had actually been done. Defendant conceded that plaintiff had in part performed his promises as recited in the agreement. He testified that he had refused to pay the $5,000 because plaintiff had not fully performed. He also said that he did not think the agreement was binding because his daughter did not sign it. Prom the averments of the answer it may be inferred that defendant declined performance on his own part because he considered the contract of no force and effect due to the failure of plaintiff to sign it in person. Thеre was no dispute between the parties as to what plaintiff had done, nor as to defendant’s refusal to make the payment that he had agreed to make. Plaintiff’s proofs, including exhibits offered and received in evidence, .established that he had paid his mother’s bills and her funeral expenses in an aggregate amount excеeding $5,000. Such fact was not denied by defendant in his answer or in his testimony. The trial judge was correct in concluding that there were no issues of fact to be determined by the jury.
It is undisputed that plaintiff authorized his attorney to affix his signature to the written contract executed on January 29, 1947, which is the basis of
It is defendant’s position on this appeal, as it was on the trial in circuit court, that if a valid contract had been made by the parties no performance whatever was required on defendant’s part until plaintiff had fully performed his obligations. Obviously the trial judge did not accept such theory. It may be noted in this connection that the proofs fully justify the conclusion that plaintiff was ready and willing to carry out his agreement. There is no claim in the case, presented either by pleadings or by proofs, that the nonperformance by plaintiff of all of his obligations rendered it impossible for defendant to perform.
It is significant that the contract еxecuted by the parties did not in specific terms provide that there should be no obligation on defendant’s part unless and until plaintiff had carried out each and all of his promises. That defendant might have insisted on the inclusion of such a provision by his attorney in drafting the instrument is obvious.
Kachanowski
v.
Cohen,
While parties to a contract may by specific provision, or by necessary implication, make performance by one party a condition precedent to liability on the part of the other, courts are not disposed, in the absence of specific provisions or reasonable implications, to give such construction to an agreement, especially if so doing brings about an unfair
“While the courts may not turn a condition precedent into an independent agreement, they are disinclined to construe stipulations in a contract as conditions рrecedent, unless 'compelled to do so by language of the contract plainly expressed, where so to do would result in injustice.”
The distinction between a condition precedent and a promise to discharge an obligation was considered in
Lach
v.
Cahill,
“A condition precedent is a fact or event which .the parties intend must exist or take place before there is a right to performance. McIsaac v. Hale,104 Conn 374 , 379 (132 A 916); McFarland v. Sikes,54 Conn 250 , 251 (7 A 408, 1 Am St Rep 111); 3 Corbin, Contracts, § 628 at p 515, § 629; 5 Page, Contracts (2d ed), § 2586; 1 Restatement, Contracts, § 250. A condition is distinguished from a promise in that it creates no right or duty in and of itself but is merely a limiting or modifying factor. 3 Corbin, Contracts, § 633. If the condition is not fulfilled, the right to enforce the contract does not come into existence. Bialeck v. Hartford,135 Conn 551 , 556 (66 A2d 610 ); Sheketoff v. Prevedine,133 Conn 389 , 393 (51 A2d 922 ,171 ALR 1009 ); Fischer v. Kennedy,106 Conn 484 , 490 (138 A 503); Webb v. Moeller,87 Conn 138 , 141 (87 A 277); 3 Williston, Contracts (Rev ed), § 675; 1 Restatement, Contracts, § 257. Whether a provision in a contract is a condition the nonfulfillment of which excuses performance depends upon the intent of the parties, to be ascertained from a fair and reasonable construction of the language used in the light of all the surrounding circumstances when they executed the contract. New Haven Sand Blast Co. v. Dreisbach,102 Conn 169 , 180 (128 A 320); Sugrue v. Champion, 128 Conn574, 577 ( 24 A2d 890 ); 3 Corbin, Contracts, p 544; 5 Page, Contracts (2d ed), § 2579.”
In Front Street, M. & O. R. Co. v. Butler, 50 Cal 574, in holding that monthly payments under a construction contract were not conditioned on performance by the payee, it was said :
“Courts are disinclined, as was observed by the court of appeаls of New York (20 NY 432 ), to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed. The reason of this disinclination is that such a construction prevents the court from dealing out justice to the parties according to the equities of the case.”
See, also,
Inland Construction Company
v.
City of Pendleton,
The will of Mrs. Knox made provision for the payment of all “just debts and funeral expenses.” This record discloses no reason, either of fact or of law, why plaintiff might not have filed a claim against the estate of his mother, and have obtained allowance thereof, for the sums advanced by him for her support and mediсal treatment, as well as for the funeral expenses. The availability of such remedy did not, however, preclude him from relying on his contract with the defendant. The fact that he might have recovered from the estate had he sought to do so is- not a defense in the present action.
It should be noted that the agreement betweеn plaintiff and defendant contained expressions indicating that the parties had in contemplation that plaintiff would make a showing before the probate court, in the proceeding relating to his mother’s estate, as to the amounts that he had expended
In 12 Am Jur, p 848, it is said:
“A contract will not be presumed to have imposed an absurd or impossible condition on one of the parties, but will be interpreted as the parties must be supposed to have understood the conditions at the' time.”
Of like import is 3 Williston on Contracts (Rev ed), § 665, where it is said:
“Especially words literally appropriate for condition, have not been given their natural meaning where the consequence would lеad to injustice and a violation of the probable intent of the parties.”
In the early case of
Clay
v.
Ballard,
9 Rob (La) 308, the plaintiff sought to recover the sum of $4,000 which defendant had agreed to pay him as an attorney fee in a certain case pending before the supreme
“It cannot be imagined that the defendant intended to impose either an' absurd, or an impossible condition ; and to make the payment of the additional fee depend upon the fact, that the judgment tó be pronounced by the court'in the case of Groves v. Slaughter, to which the defendant Ballard was.not a party, should, in all courts,. and between all - parties, whenever a similar question should arise, carry with it the absolute authority of the thing adjudged. No man in his senses would enter into any such engagement.”
In view of the foregoing conclusions, it is unnecessary to consider incidental matters discussed by counsel in their- briefs. The judgment of the trial court is affirmed. Plaintiff may have-costs.