69 Mass. 72 | Mass. | 1854
The questions in this case arise upon the con struction of the bond from Adams to Sargent and Moulton, and the refusal or failure of Adams to perform it on his part, so as to entitle Sargent to recover back the advance, as money paid on a consideration which had failed.
This is plainly one of that class of cases, in which the contracts of each party, being mutual and dependent, are to be performed simultaneously. Neither is bound to perform on his part, unless the other is ready at the same time to perform on his part. The party who would seek to recover of the other upon a breach of contract, or failure to perform, must aver and prove his own offer and readiness to perform, and that the other party has failed to perform on his part. Both parties, apparently aware of this rule, met on the 1st of March, the extended time for mutual performance. The defendant produced a lease, already signed and sealed, and which had previously been exhibited to the plaintiff for inspection ; and also a bill of sale of the furniture, to which no objection seems to have been made; and offered to deliver them to the plaintiff, on receiving the money and securities, to be paid and delivered to him at the same time by the plaintiff.
It is very manifest, from the description in the lease offered, that it did not include but one of the stores in the Adams House, under the part used for a hotel; and the first question is, whether the obligation to let the Adams House at a specified
What was embraced in the bond by the description “ Adams House ? ” It is not therein described as a hotel. The parties are indeed described as innholders ; but this, being a mere description of the persons, affords no light. It is built on the site of the old Lamb Tavern; but that leads to no definite conclusion that it was itself a tavern. Looking .at the mere contract itself, it might have been free from all ambiguity; because, in applying the description, it must have appeared that there was an estate definitely described, and as well known by that name as the Old State House or the Boylston Market House. It is purely matter of description, and must be established by evidence aliunde. But the facts detailed in this statement do show that there is an estate corresponding in part to the description, to wit, a house known as the Adams House, in Washington Street, certain parts of which, had been previously, and up to the time and at the time of the contract, used and occupied as a hotel; and certain other parts of it used and occupied for shops for the sale of goods, let to separate tenants, with no interior communication, nor any other connection with the residue, as a hotel, than that of relative position, being supported by the same foundation and sheltered by the same roof. But this is common, especially in cities, with entirely distinct tenements or holdings. This description, therefore, so brief in its terms, when applied to the estate in question, leaves it in doubt whether these stores are excluded or included in the term “ Adams House.” But yet this is the whole of the description used in the bond, expressive of the subject matter of the lease.
It is argued on the part of the plaintiff, that “ house ” means the whole of a house, and not part of a house; that it includes all upon the same foundation and covered by the same roof. This would be quite plausible, indeed an argument of considerable weight, if the term was used in its generic sense, as “ my nouse, situated in” such a town, or such a street. But it ia
In seeking for all surrounding circumstances, to throw light on matter of description, the object is to obtain from the words used in the instrument, in the light of all such circumstances, the intent and meaning of the parties. In doing this, it is an established rule, that if some of the circumstances do not correspond with a probable exposition, they will not prevent its adoption, if, from the whole description, the meaning or intent of the contractor or devisor can be collected, under the maxim, falsa demónstrate non nocet. But in coming to apply the description to the contract, and after all these means of exposition have been exhausted, there may remain an uncertainty in such application; this constitutes a latent ambiguity; and then the law is well settled that paroi evidence is admissible to explain what was intended.
And upon consideration of the evidence, the court are of opinion that this constituted a case of latent ambiguity, as that Is understood and explained in this department of the law.
The paroi evidence being admitted, the case is put beyond all doubt by proof that the contract did not include the five stores in the lower story of the hotel. The mere designation “ Adams House” would not include either one of the stores; but the lease, as actually drawn up and offered by Adams, did include
The court are of opinion therefore that, so far as the objection to the sufficiency of the lease offered by the defendant was founded on the consideration that it did not embrace the stores under the Adams House, it was not well founded, and that the lease in this respect conformed to the contract.
We have already stated that this was a case where the parties were to perform simultaneously, and where each" must prove readiness and preparation on his part, before he can charge the other with default. Under this rule, it might be a question, as here were mutual agreements to enter into a lease by indenture, to become binding on both parties, whose particular duty it was to prepare these indentures; and where one offered a draft for consideration, which the other declined accepting, whether the party objecting should not have offered a draft on his part, for the consideration of the other side, which he would be willing to execute. But perhaps this is a mere abstract question. The plaintiff might, no doubt, have tendered such a draft, whether he was bound to do it or not. It was his duty to do enough to show his present readiness to perform. The demise of the premises and the sale of the furniture, on the one side, and the payment of the stipulated portion of the purchase money, and a mortgage on the furniture for the balance, on the other, were parts of one entire contract, so that one was not to be done without the other. Without stopping to inquire whether in strictness the plaintiff should have counted out or produced money enough to pay the required sum, he must at least show a default on the part of the defendant. Tried by this test, it appears that the defendant did, in the first instance, prepare ana offer an executed lease, demising the premises agreed for, for the term stipulated, at the rent agreed, together with a bill of sale of the furniture, to which there was not then and has not since been made any objection.
But the court are of opinion that it is a sufficient answer that these objections were not made at'the time when the terms of the indenture .might have been amended and modified so as to obviate these objections. Adams having produced a draft of lease on his part, which was a substantial performance, if the other parties had objections to the form of the instrument, they should have made specific objections at the time. But it appears by the evidence that neither these specific objections nor any others were made at the time. Upon repeated inquiries by Adams what the objections of the lessees were, no specific objection was made, but only that it was not according to the bond. It is no sufficient answer to say that at one time Adams said: “ This lease is according to the bond ; I have taken advice upon it, and will give you no other;” because the defendant afterwards left the room, and after a short time returned with his counsel, tendered the bill of sale, the plaintiff read the papers, upon which the defendant asked him if they were right, and frequently requested him to say whether they were wrong, and said if they were not right, he would make them so. And to these requests the plaintiff made no satisfactory reply, and made no objection to the papers.
For these reasons, and without deciding whether the plaintiff
Judgment for the defendant.