McWilliams v. Brookens

39 Wis. 334 | Wis. | 1876

Cole, J.

The objection taken to the complaint is, that it states no cause of action. It is said that the conditions in the bond or agreement sued upon are concurrent and mutually dependent, and that neither party can maintain an action for the refusal or neglect of the other to perform, without showing performance or its equivalent on his own part; and that therefore the complaint is defective in substance because it does not show that a deed of the lands sold was actually executed in due form by the plaintiff and tendered to the defendant. The question then is, Does the complaint show a sufficient performance of the contract by the plaintiff, or that he was able, ready and willing to perform at the proper time and manner, but was prevented doing so by the act of the defendant?

It is in substance alleged that the plaintiff has at all times been ready, willing and able to comply with his contract, and that he did, on the 15th day of September, 1874, offer to deliver to the defendant a good and sufficient deed of the land sold, and did offer to deliver possession of the premises, and then demanded the first payment of $4,000; but that the defendant then absolutely refused to receive a deed conveying a perfect title, and refused to pay any money on the purchase. It 'was doubtless the right of the defendant, under the agreement, to have a deed conveying a good title, before he could be called upon to make the first payment or execute a mortgage.' But he did not require the execution and delivery of the conveyance. On the contrary, when the plaintiff offered to deliver to him a proper deed, he absolutely declined to receive it. It would have been a very idle act for the plaintiff, under such circumstances, to actually execute, acknowledge and tender a deed, in view of -the peremptory refusal of the defendant to accept it. The law requires the performance of no sttcb useless ceremony in business transactions. Prof. Parsons lays down tbe rule on this question as follows: “Concurrent promises are those where the acts to be performed are simultaneous, and either party may sue the other for a breach of the contract, on showing, either that he was able, ready and willing to do this act at the proper time and in the proper way, or that he was prevented from doing it, or being so ready to do it, by the act or default of the other contracting party.” 2 Parsons on Contracts, 677; Howland v. Leach, 11 Pick., 151; Tinney v. Ashley, 15 id., 546; Carpenter v. Holcomb, 105 Mass., 280. Within the doctrine of these cases, if the plaintiff was able, ready and willing to perform the contract on his part when he offered to deliver a sufficient deed, which the defendant refused to receive, this was equivalent to tender of full performance. By the act of the defendant he was relieved from the necessity of actually executing, and tendering a deed. “ Readiness, within the meaning of the rule, does not require full and complete preparation at the moment when the offer is made.” Carpenter v. Holcomb, supra. The plaintiff was not bound to make out and tender a deed when the defendant had declined to accept it.

There is nothing in the case of Bateman v. Johnson, 10 Wis., 1, in conflict with these views. That was an action upon a contract for the sale and conveyance of real estate, brought by the vendee against the vendor. The defense was, that a good and sufficient deed of the premises was tendered the plaintiff before the commencement of the suit, which was refused. This was held to be a complete defense. In other words, it appeared from the answer that there liad been no breach of the contract on the part of the vendor.

We think the demurrer in this case was properly overruled, and the order must therefore be affirmed.

By the Cov/rt. — Order affirmed.