Pendergast v. Meserve
22 N.H. 109
Superior Court of New Hampshir...
1850
Check Treatment
Perley, J.

According to the first bargain, which the parties made, the plaintiff’s wife was to release her right of dower by joining in the deed with her husband. The plaintiff’was unable to perform his part of that bargain, because his wife refused to execute the deed. Thereupon the first bargain was abandoned and a new one made, according to which the land was conveyed. The original verbal agreement for the sale of the land may therefore be laid out of the case.

The new agreement, on which the land was sold, was reduced into writing at the request of the parties; it was deliberately examined and considered by them; was signed and delivered by the defendant and received by the plaintiff at the same time with the execution of the deed. The whole price of the land was paid according to the bargain, except such sum as might be due by the terms of the defendant’s written contract. It is very plain, on extremely familiar principles, that the plaintiff, if he recover at all, must recover on the written contract. Nothing remains due for the land, unless the plaintiff is entitled to the one hundred dollars according to that contract.

The signing of the deed by the plaintiff’s wife, is made a condition precedent to his right of recovery on the written contract. The writing provides in terms, that, unless she sign the deed, the note shall be void. The plaintiff undertook for the act of his wife. If he meant to claim on the contract, it was his business to see that she signed the deed. The wife had no power in law to act for, or by, herself; and the defendant could be under no obligation to apply to her on the subject. As to the defendant, the case stands as if the plaintiff had stipulated for his own act. Com. Dig. Condition, (L. 4) ; Mill Dam Foundry v. Hovey, 24 Pick. 417.

*112It might be conjectured and surmised from the general nature of the transaction that this sum of one hundred dollars was retained out of the price of the land on account of the wife’s claim of dower; and that when her claim was extinguished, whether by her release, or by her death, it would be reasonable that the defendant should pay the money. But this is not the contract which the parties have seen fit to make. There is no suggestion of fraud or mistake. The written instrument, under which the plaintiff claims, is express and emphatic, that the money is not to be paid unless the plaintiff’s wife sign the deed. Here is no ambiguity of language, and no exposition can be made against the express words of the written contract. It is not for us to inquire into the motives and reasons which induced the parties to make this agreement. They have made it in very plain terms, and the Court cannot make another for them. Cutter v. Powell, 6 Term Rep. 320 ; Gerrard v. Clifton, 7 Term Rep. 679; Jenness v. Camp, 13 Johns. Rep. 96 ; Jarvis v. Rogers, 3 Verm. Rep. 339.

It is not, however, difficult to suppose reasons which might induce the defendant to decline giving his contract to pay this sum at the death of the plaintiff’s wife, if she did not sign the deed in her lifetime. It might embarrass a sale of the land by the defendant, or discourage him from making improvements on it, if his title were to remain clouded with an incumbrance of dower, till the death of the plaintiff’s wife; and he might well insist that his contract should be so written as to furnish the plaintiff with a motive to procure a prompt discharge of the incumbrance. But it is enough that by the clear and unequivocal terms of the contract, the plaintiff is not entitled to recover on it.

Tucker v. Merrill, cited for the plaintiff, from 11 Mass. 143, is very distinguishable from this case. There, the defendant for an antecedent debt gave his draft to the plaintiff, payable on the return of the brig Cataract. The brig never returned; and after a reasonable time, the plaintiff brought his action on the draft, and also'for the antecedent debt. The Court held, by reference to mercantile usage, that the plaintiff was not to take *113the risk of the brig’s return; that her return was mentioned as a general term of credit; that the plaintiff on the facts of that case, had his remedy for the original demand; but they distinctly held that the plaintiff could not maintain his action on the draft, except in the time of the draft itself, that is on the return of the vessel from the voyage then in contemplation.”

In this case there is no antecedent debt, upon which the plaintiff can fall back, as he never had any claim, except by the writing.

Judgment on the verdict.