11 Vt. 549 | Vt. | 1839
The opinion of the court was delivered by
In this case the court have found no difficulty with the preliminary question made, in regard to the defendant’s right to give notice of special matter, under the plea of non est factum. The words of the statute are, “That the general issue of not guilty, nil debet, or any other gener
Upon the merits of the case two questions arise:
'j 1. Whether the plaintiff has sufficiently performed, on j his part, to enable him to sustain an action upon the con«tract ? and
2. Whether an agreement with defendant by parol, and without consideration, but before any breach had occured, to accept of something else in lieu of the thing specified in the contract, which agreement the defendant acted upon and performed, so far as he would be bound to, will exonerate him from his obligation ?
It has been argued in the present case, that the extent of plaintiff’s obligation was fulfilled by the execution of a deed, and that it was at the risk of defendant whether it conveyed title. The agreement now in suit specifies the land sold, but is silent in regard to the title. The price was $650, and the covenant to convey was in these words: “ to convey to said Samuel by a deed of conveyance, a certain tract of land,” &c. Can it be with propriety said that this covenant is satisfied by the “ execution of a deed of conveyance ?” Nothing could be more absurd. The contract is, not to execute a deed merely, but “ to convey, by a deed, &c. a certain tract of land. Could language be more explicit ? What is implied in conveying land ? Surely, that the title shall be con
Where the contract refers to the instrument only, I think an obligation to convey land by a good and sufficient deed1, and to deliver possession of the same, does require, that the defendant should either be in possession of the land, or at least, that there should not be, at the time of the execution of his deed, an adverse possession, so as to render the deed inoperative. It is upon this ground only that I dissented from the opinion of my brethren in the case of Preston v. Whitcomb, decided on the present circuit. Ante, 47. And I here beg leave to refer to the preceding suggestions, as containing the reasons for my dissent in that case.
This decides the case against the plaintiff, without the ne- : cessity of passing upon the other point presented in argu- \ ment. But we think it very evident, that there was no failure on the part of the defendant, for which plaintiff could ; maintain an action, even,if he had performed on his own part. It is a well settled principle in the law of contract, and equally applicable to all classes of contract, where relied upon by way of defence, that either party may waive, either absolutely or conditionally, any stipulation in his favor, at L._any time before a breach. 2 Stark. Ev. 6 ed. 78. B. N. P. 152. 2 Lev. 124. Gomery v. Bond, 3 M. & S. 378. In short, this principle is so familiar and runs so extensively throughout all the departments of the law of contract, that to cite authority in its support, seems like “ heaping demonstration upon the shoulders of demonstration.” It goes upon the ground, that where one party has induced the other to act upon declarations simply, he must be bound by them, although made without consideration, and affecting his interest ever so deeply. Where this alteration is in regard to a condition precedent, and is necessary to be shown by the party, afterwards seeking redress upon the contract, it is required that the alteration should be by a contract of as high a nature as the original contract; else the party performing the altered contract will lose his remedy. Creig v. Talbot, 2 B. &
But after a breach of contract, whether simple or under seal, a mere accord without satisfaction is no defence. But an accord and satisfaction is wholly inapplicable to the subject of subsisting contracts. And the decision, in this case, rests, it will be perceived, upon grounds wholly different.
Judgment affirmed.