20 N.J.L. 435 | N.J. | 1845
Lead Opinion
The opinion of the Court, Nevius, J. dissenting, was delivered by
This is an action of assumpsit. The plaintiffs are commissioners, authorized by' a decree of the Orphans’ Court of the county of Burlington to make sale of the real estate of one Joseph C. Haines, who died seized thereof and intestate. The declaration is special, to recover the specific difference between a first and a second sale; the defendant, a purchaser at the first sale having refused to comply with the conditions of such sale; and the premises on a second sale bringing a much less sum.
Though not made a point on the argument, doubts have been suggested as to the ability of the commissioners to bring a suit in their own, names on the contract entered into between them and the defendant. I do not perceive any difficulty on that point. In the case of such sales, the deed cannot ordinarily be previously prepared and ready for execution on the very day of sale; the purchaser until the sale has taken place being
In concurring in the propriety of setting aside the verdict in this case, I do so for the reasons and on the points following.
1st. As to the re-sale. In order to entitle the plaintiffs to recover, in an action like the present, I hold that the second sale must be on the same conditions as the first, as near as may be;
2ndly. As the sale was made by the acre, it became necessary on the part of the plaintiffs, to prove the number of acres in the farm, in order to ascertain the difference of the two sales and the extent of the alleged liability of the defendant. The plaintiffs offered no direct evidence of the number of acres. The deed, tendered by them to the defendant, described the premises as containing 146 acres; and upon this quantity the plaintiffs based their claim and the jury rendered their verdict The
But lastly: one of the conditions of sale in this case was: “ The deed will be executed and ready for delivery to the respective purchasers, on the said 20th day of March next, at 10 o’clock, A. M. of that day, at the house of Charles Bryan, inn-keeper, in Mount Holly, in said county; and in case any of such purchasers shall neglect to receive his deed at the said time and place, and pay, &c., the property will be advertised and sold again, and if it produce a less sum than the former bid and interest and expenses, the purchaser will be held liable for the difference.” It is not necessary again to recite the particular terms of the payment to be made and the security to be given for the balance. It is sufficient to say, that it is a case of dependent covenants. In great relaxation of the technicalities, with which this branch of the law of contracts was formerly loaded and perplexed, it is not now the employment of any particular word, which determines a condition to be precedent, but the manifest intention of the parties. One of the rules, upon which the construction depends, is that where the mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. As where, in the conveyance of property, the whole of the consideration money is either to be paid or secured, on the delivery of the deed. Such is a plain case of stipulation for a contemporaneous performance, a performance uno flatu, and where neither party intends to trust the other. In agreements for purchase indeed, it is now well settled that the covenants are to be construed according to the intent of the parties, and are therefore always to be construed dependent, unless
To be sure, if the one party has discharged the other from the strict performance of the condition ; if he has rendered the execution and delivery or tender of a deed, futile and unnecessary by an express declaration that he will not receive it; then, the party proceeding by setting out that excuse upon the face of the declaration, may be relieved from the necessity of proving the offer to perform his part of the mutual agreement. If the defendant prevent the performance of a condition precedent by his own neglect or default, it is equal to a performance by the plaintiffs. Hotham v. East India Co., 1 T. R. 638. In the case of Jones v. Barkley, Doug. 684, where the plaintiff was ready and offered to perform his part, but was discharged by the other; upon averring such discharge in the declaration, it was held that the plaintiff might maintain his action without proving a tender. But if a party plead a tender he must prove it. Per Buller, J., Doug. 695. Such may be regarded as the unquestioned rule. It is unnecessary to examine the letter, written by the defendant to one of the commissioners, to ascertain whether it contains such a
As I hold it, the time fixed for the performance, is at law deemed of the essence of the contract. It is true that it is not, generally, so considered in equity, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Courts of equity, for the most part, have regard to time only so far as it respects the good faith and diligence of the parties. Thus courts of equity, sometimes, will not decree a specific performance, though damages may be recovered at law. So those courts frequently decree a specific performance, when the action at law has been lost, by the default of the very party seeking the specific performance, if it be notwithstanding conscientious that the agreement should be performed. It is thus, in cases where the terms of the agreement have not been strictly performed on the part of the person, seeking specific performance; though to sustain an action at law, performance must be averred according to the very terms of the contract. 2 Story, Eq. Jur. § 776, et seq.; 1 Sugden, 245, *340; Taylor v. Longsworth, 14 Peter’s R. 174; 5 Vesey Jr., 719, note to Sumner’s edition.
“ The general opinion,” says Sir Edward Sugden, 1 Yol. 294, “ has always been, that the day fixed was imperative on the parties at law. This was so laid down by Lord Kenyon, and has never been doubted in practice. The contrary rule would lead to endless difficulties.” He adds, that perhaps the power, assumed by courts of equity, of dispensing with the literal performance of contracts is to be regretted. In the case alluded to before Lord Kenyon, it was held, that according to the conditions or covenant and the pleadings thereupon, the seller of an estate was bound to be prepared to produce his title deeds at a particu
It is hardly necessary to multiply authorities. It may be laid down as the settled rule, that where time enters into the performance of a condition precedent, the plaintiffs must aver accordingly, unless strict performance is waived or otherwise discharged by the defendant. In case a discharge of the strict performance be relied upon, as a waiver by the defendant, it must be pleaded. The rule must apply — I can perceive no difference in the principle — to an hour as well as to a day. I do not allude to the question of proof, as to how far a reasonable allowance may be made on account of the difference to be expected in. the clocks and watches of different persons. A contract, to be performed at a given hour, must necessarily be governed by the same principles as when to be performed on a given day; the same rules of pleading and of evidence must apply to the one case, as to the other. The averment of the plaintiffs is, that they did make and
Dissenting Opinion
dissenting. This was a special action on the case, brought by the plaintiffs, who were commissioners appointed by a decree of the Orphans’ Court of the county of Burlington, to sell the real estate of which Joseph C. Haines died seized. The action was brought for the specific difference between a first and second sale of a farm, made by the plaintiffs. The first sale was on the 2d of January 1841, when the defendant became the purchaser lor the sum of $117 per acre; and the second was on the 1st of July of the same year, when the premises were sold to a different purchaser at $99 per acre. The plaintiffs claim the difference between these sales, and the costs of the second sale.
The declaration contains two counts. The first sets forth, with particularity, the proceedings in the Orphans’ Court, from which the plaintiffs derive their authority to sell, the report of sales, the decree of confirmation, order to make deeds, &c.; also, the covenant or agreement of the defendant to pay and secure the purchase money, at the time and place therein specified; and if he failed so to do, to pay the deficiency and costs of a second sale; with an averment, that the plaintiffs were at the place at the time specified, and ready to deliver and actually tendered the
The second count is substantially like the first, merely omitting to set forth the preliminary proceedings in the Orphans’ Court. Issue was joined on the plea of non-assumpsit, and a trial had before the Gloucester Circuit in March 1843, which resulted in a verdict for the plaintiffs for $2653.83.
Several reasons are urged, in support of the motion to set aside this verdict.
The first is, that the plaintiffs had no legal right, or authority to sell the land in question; and consequently could make no legal title for the same; and that the defendant was not legally bound to take the title tendered. It is insisted that the sale was void, or at all events voidable,
1st. Because the statute did not authorize the Orphans’ Court, to decree a sale of the lands; or if it did,
2nd. That the proceedings in that court were irregular and defective, ánd for that reason the sale is voidable.
The first act of the legislature, which invested the Orphans’ Court with the power of decreeing a partition of lands, was passed on the 16th day of December 1784, but gave to that court no power to decree a sale, in case no partition could be made. On the 11th of November 1789, another act was passed for the partition of lands held by coparceners, joint tenants, and tenants in common ; which recited the delay, expense and oppression of writs of partition, and gave to a justice of the Supreme Court, and the judges of the Common Pleas, authority to appoint commissioners to make partition. But this act did not vest either the justice or judges with the power of decreeing, or the commissioners with the power of making, a sale, where the lands' could not be divided without prejudice. On the 7th of February 1816, the legislature passed another act entitled “ An Act supplementary” to both the Acts of 1784 and 1789; which provides “ that, upon application for partition of lands under either of the two last mentioned acts, if the commissioners shall be of opinion, that the land cannot be divided without prejudice to the owners, then either of the courts, to which application shall be so made, may order the commissioners to sell, &c.” On the 13th
But it is further urged, that if the decree of sale is not absolutely void, it is nevertheless voidable, as the proceedings before that court were irregular and defective; and that the defendant was not bound to accept a voidable title, and pay his money. The point of this objection is, that, in the order to divide the lands in question, the court omitted to specify the number of shares,
The next ground urged in support of this motion is, that the order is to divide a reversionary interest, and not an estate in possession. The lands were subject to or under a lease for
It is further objected, that the plaintiffs did not tender to the defendant a deed for the lands, at the time and place mentioned in the conditions of sale; and that the defendant was therefore absolved from his contract, and not bound to accept it at any other time; and for that cause it is urged that this verdict should be set aside.
One of the conditions of the sale, at which the defendant was purchaser, is “ That the deeds, for the respective tracts of land sold at this vendue, will be executed and ready for delivery to the respective purchasers, on the 20th day of March at 10 A. M. of that day, at the house of Charles Bryan, inn-keeper in Mount Holly; and in case any of said purchasers shall neglect to receive his deed, at the said time and place, and pay the purchase money and secure the same as aforesaid, the property will be advertised and sold again; and if it produce a less sum than the former bid, and interest and expenses, the purchaser will be held liable for the difference.”
The evidence touching this part of the case and applicable to the objection just mentioned, as it appears upon the case presented us, is, “ That on the 20th of March, at early candle light in the evening, at the house of C. Bryan, one of the plaintiffs
The covenants between the parties, or rather the agreements between them, are mutual and dependent; and neither party can maintain his action against the other for his default, without proving a performance, or an offer to perform his own part of the contract, or at least alleging and proving some lawful and valid excuse for not doing so. 2 John. R. 207; 9, Ib. 209; 2 Green, 446. Here the plaintiffs aver, that they were ready and willing to perform their part - of the agreement, and actually tendered to the defendant a deed for the lands, according to their contract, but that he refused to accept the same and pay the money. To support this averment, they proved, that they were ready to deliver the deed at the place where it was to be delivered, about mid-day of the day when it was to be delivered; and that they remained there and made the tender on the same day and at the earliest practicable moment, that they could do so, after the deed was prepared and executed. In this proof I think the plaintiffs have maintained their averment, and shown their readiness and their offer to perform, according to the true spirit and meaning of their bai’gain. It is true that the conditions of sale specified ten o’clock, as the time when the deed was to be prepared and ready for delivery ; but this could not be understood by the parties as the only moment of that day, in which they could legally perform their own part, or claim from the other the performance of his part. It is to be esteemed an hour fixed and agreed upon, for the greater safety and convenience of the parties, and to secure their personal attendance with the least loss of time; to enable the one to prepare the conveyance and examine the securities, and the other to take counsel, if necessary, as to the form and substance of the deed, and the validity of the title; and that sufficient time might be allowed, for all these matters to be performed with caution and due regard to the interest of the parties, during the day. Such is the fair and reasonable construction of the contract, and it would be a libel upon the law, to say, that the plaintiffs could make the delivery of the deed, or the tender of it,-at that precise hour only ; and for their failure to do so, that they lost all legal right and benefit from their eon-
Another ground taken by the defendant, in support of his motion is, that the conditions of the second sale differed from those of the first. This must have been necessarily so, in part; for a second sale could not legally take place, until the time mentioned for the first payment to be made, according to the terms of the first sale, had transpired.
It is admitted that the vendors on a second sale, where the purchaser at the first has neglected to comply with the terms, and is legally responsible for the difference, have no right to impose new, extraordinary and oppressive conditions, such as will prevent fair and reasonable competition, or prevent the property from bringing a fair and reasonable price; but I know of no principle of law, which will bind them to the precise terms of the former sale. They have a right so to frame their conditions,
It is also objected, that there was no lawful evidence before the jury, of the precise number of acres in the farm. The petition for division, and the order appointing commissioners, described the tract as containing 150 acres more or less. The commissioners, acting as the agents or officers of the court and under their official oath, reported that it contained 146xVv acres, which report was confirmed by the court, without exception, and an order made that the deeds should be made out and given to the purchaser. I do not mean to say, that those proceedings in the Orphans’ Court are conclusive evidence of the quantity of
The last exception, taken to the trial and verdict, is the Judge’s charge. Upon-examining that, although I am not prepared to sanction all the learned Judge said to the jury, and especially the remark, “ That as the defendant had not proved that he tendered the money, it was not necessary for the plaintiffs to prove that they tendered the deed,” yet, as the plaintiffs did prove an actual tender of the deed, and as the verdict is not, in my opinion, either against law or evidence or the weight of evidence, and as I can find no misruling of the court in the progress of the trial, I think the verdict ought to stand, and the rule ought to be discharged.
Verdict set aside and a new trial ordered.
Whitehead, J. and Randolph, J. did not hear the argument and expressed no opinion.
Cited in Shinn v. Haines, 1 Zab. 342; Stryker v. Vanderbilt, 1 Dutch. 505; Long v. Hartwell, 5 Vr. 128; Mut. Ben. Life Ins. Co. v. Hillyard, 8 Vr. 484.