Smith v. Lewis

26 Conn. 110 | Conn. | 1857

Storrs, C. J.

On the argument of this writ of error, we have confined the counsel to those questions which were not decided by us in this case when it was presented at a former term for our advice as to what judgment ought to be rendered on the facts found in the superior court. (24 Conn., 624.) So far as this case is concerned, the points on which we then certified our opinion to that court, and in accordance with which the judgment was rendered which is now sought to be reversed, must be deemed to have been definitely decided. There was then an opportunity to argue them fully and they were carefully considered; and there would not only seem to be an incongruity in our entertaining a reargument of them in this form, but such a practice would produce great inconvenience, and indeed oftentimes frustrate one of the principal purposes for which questions are referred to us for our advice by the superior court, which is that it may be the foundation for ulterior proceedings in that court. It is unnecessary to determine whether there may not be very peculiar circumstances, which might induce us, on a proper application by a party in a case which has been decided by us, to allow a reargument of questions involved in it; it is sufficient in the present case that there, are no reasons for such an indulgence which would not exist in every other.

Under this decision, the only question left for us to consider in this case, is, whether the declaration is sufficient. The only exception taken to it by the plaintiff in error, and to which alone therefore we shall confine our attention, is, that it does not allege that the plaintiff offered to perform those acts which by the agreement declared on he promised to do. We are clearly of opinion that this objection is not sustainable. That agreement contained mutual and dependent promises between these parties, which were to be performed by them concurrently, and therefore at the same time. The declaration, after setting out the acts to be done by them respectively, and alleging a readiness and willingness on the part of the plaintiff to perform all the acts to be done by him, particularly describing them, on the day mentioned in the agreement for their performance, and also, generally, a complete performance by him of all the things in the said agreement contained on his part to be performed, avers that “the defendant hath not performed, fulfilled, and kept anything in said agreement contained on his part to be performed, fulfilled, and kept, and that he did not on that day or at any time previous thereto, perform those acts, particularly describing them, but, on the contrary thereof, then and there wholly neglected and refused, and ever since has neglected and refused so to do.” Without relying on the general averment of performance, or inquiring whether, after verdict, in which light this declaration is to be treated, that averment should, as the plaintiff claims, be deemed to supply the want of the formal allegation insisted on by the defendant, we think that the refusal of the defendant to perform the agreement on his part, when the plaintiff was ready and willing to perform it on his part, superseded the necessity of any further acts towards a performance by the latter, even if, under any circumstances, it would have been necessary to go further and allege a tender or offer by the plaintiff; and therefore that the declaration shows that the plaintiff did all that it was necessary for him to do in order to maintain this action. The refusal of the defendant to perform would render such an offer a futile act, which the law did not require. The objection of the defendant, that the declaration should have stated an offer or tender by the plaintiff in addition to a refusal by himself, amounts to a claim that a performance by the plaintiff, or that which is equivalent, ought to have been alleged; because such tender and refusal would, in law, be considered equivalent to a performance. But clearly such performance was not necessary, and therefore need not be alleged, because, as the agreement required only that the acts of both the parties should be done at the same time, neither was obliged to do the first act, or consequently to perforin his part of the agreement without or before the other. The plaintiff, in order to sustain this action, need only show that he did what the law required of him; and all that it required was, that he should be ready and willing to perform on his part if the defendant was also ready to perform on his. The plaintiff was clearly not bound to convey his land to the defendant and pay him the money for his utensils and furniture, unless the latter was ready to convey his land to the plaintiff according to the agreement. Consequently a readiness by the plaintiff to perform, provided the defendant was also ready, is equivalent to what the former was bound to do when the latter refused to perform on his part, and an averment of such readiness on the part of the plaintiff is sufficient. Some misapprehension or confusion appears to have arisen from the mode of expression used in the books in treating of the necessity of a tender or offer by the parties, as applicable to the case of mutual and concurrent promises. The word “tender,” as used in such a connection, does not mean the same kind of offer as when it is used with reference to the payment or offer to pay an ordinary debt due in money, where the money is offered to a creditor who is entitled to receive it and nothing further remains to be done, but the transaction is completed and ended; but it only means a readiness and willingness, accompanied with an ability on the part of one of the parties, to do the acts which the agreement requires him to perform, provided the other will concurrently do the things which he is required by it to do, and a notice by the former to the latter of such readiness. Such readiness, ability, and notice are sufficient evidence of, and indeed constitute and imply, an offer or tender in the sense in which those terms are used in reference to the kind of agreements which we are now considering. It is not an absolute, unconditional offer to do or transfer anything at all events, but it is in its nature conditional only, and dependent on, and to be performed only in case of, the readiness of the other party to perform his part of the agreement. Hence the declaration states what amounts to a tender or offer by the plaintiff as properly understood in reference-'to this subject. The authorities fully sustain the principles which we have laid down, and nearly in the same terms, and most explicitly sanction the mode of declaring adopted in this case. A reference to them only is necessary. Morton v. Lamb, 7 T. R., 125. Rawson v. Johnson, 1 East, 203. Waterhouse v. Skinner, 2 Bos. & Pul., 447. Ferry v. Williams, 8 Taunt., 62. Norwood v. Read, Plowd., 180.

It will be seen, that in several of these cases, the declaration was, in respect to the point before us, framed exactly like the present, and that they turned on the necessity of the averment on which the defendant insists. We would add that, although this case was not formerly presented to us in the form of an objection to the declaration, the principles then adopted by us most fully sustain its sufficiency in respect to the exception now urged against it. It was then admitted by the counsel for the defendant, that his conduct as there claimed to be disclosed, that is, his intentional absence from the place where the agreement was to be performed, constituted in law a refusal on his part to perform it, and that in case of such refusal, it was sufficient for the plaintiff, to show a readiness and willingness to perform on his part, and it being determined by us that these two facts sufficiently appeared on the finding, judgment was advised for the plaintiff. The judgment complained of is therefore affirmed.

In this opinion the other judges concurred.

Judgment affirmed.