48 Ind. App. 448 | Ind. Ct. App. | 1911
This is an appeal from a judgment of the Benton Circuit Court, sustaining a demurrer to a complaint in three paragraphs.
The errors assigned and argued by counsel for appellants
In the amended first paragraph of complaint it is alleged, in substance, that plaintiffs were partners doing business under the firm name and style of Straus Bros.. & Co.; that on October 31, 1906, plaintiffs entered into a certain contract in writing with defendant, which contract was filed as an exhibit and made a part of the complaint; that by the terms of said contract defendant agreed to pay to plaintiffs on November 13, 1906, the sum of $9,000, which was due and unpaid; that by the mutual mistake of the parties to said contract, and of the scrivener who wrote it, it was dated “November 31, 1906,” when, in truth and in fact, it was executed on October 31, 1906; that on November 13, 1906, and thereafter, plaintiffs were ready and willing to perform all the conditions of said contract to be by them performed, and offered to perform all the conditions that had accrued up to that date, and on that date demanded of appellee the performance of each of the conditions on his part to be performed, that had accrued up to that date; that defendant refused to perform the conditions on his part to be performed, and prevented plaintiffs from performing the conditions to be by them performed. On this paragraph the plaintiffs pray judgment for $10,000, and all proper relief.
Plaintiffs’ “third and further paragraph of complaint” alleges the facts stated in said amended first paragraph of complaint, and, in addition thereto, states that by the terms of said contract, defendant sold and plaintiffs bought a stock of goods owned by defendant, and located at Earl Park, Indiana, which stock was to be invoiced at actual cost of the goods, except that those damaged, unsalable, or out of style, were to be taken at their actual value; that the possession of said stock was to be delivered to plaintiffs on November 13, .1906, and inventory was to be made of
The contract, filed as exhibit A, shows, in substance, that
“Said deed, abstract, deferred payments, notes, mortgage and insurance policy shall be delivered, and this contract shall be closed on or before March 1, 1907, at the office of Straus Bros. & Co., at Ligonier, Indiana.”
It also provided that if the title was not merchantable at that time, the first parties should have sufficient time thereafter to correct all such defects, either by suit to quiet title, or otherwise, but that the date for closing the deal should not be delayed beyond March 1, 1907, on account of defects in the title, and provided that in case defects were found, a bond should be executed to indemnify the second party against any loss or damage on account thereof. The contract contains the following provision:
“If either of the parties shall fail or refuse to perform the stipulations hereof on their part, then the other parties, may, by suit, enforce the specific performance by the defaulting party of this contract, the execution of a deed as herein provided, and the performance of any other act hereby required of the defaulting parties, or may at their option recover from such defaulting party, with interest and attorney’s fees, without relief whatever from valuation and appraisement laws, whatever damages they may have suffered by reason of such default. ’ ’
“it is further agreed that, in consideration of the foregoing, the second party hereby sells and the first party hereby buys the stock of goods now owned by the second party, which is located at Earl Park, Indiana, which stock is to be invoiced at actual cost (no charge for freight or cartage), except such goods as are damaged, or unsalable on account of style, which shall be taken at value.”
The contract further provides:
‘ ‘ Said stock to be turned over to Straus Bros. & Co. on November 13, 1906, and inventory to be made, starting on the 13th of November, or the 14th. ’ ’
And it also states that each party shall select an appraiser.
In the case of Loud v. Pomona Land, etc., Co., supra, on page 576, the court, by Jackson, J., said: “The question whether covenants are dependent or independent must be determined in each case upon the proper construction to be placed on the language employed by the parties to express their agreement. If the language is clear and unambiguous' it must be taken according to its plain meaning as expressive of the intention of the parties, and under settled principles of judicial decision should not be controlled by the supposed inconvenience or hardship that may follow such construction. If parties think proper, they may agree that the right of one to maintain an action against another shall be conditional or dependent upon the plaintiff’s performance of covenants entered into on his part. On the other hand, they may agree that the performance by one shall be a condition precedent to the performance by the other. The question in each case is, which intent is disclosed by the language employed in the contract? * * In the learned note of Serjeant Williams to the early case of Pordage v. Cole [1607], 1 Saund. 319i, 320a, it is said that ‘if a day be-appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act.’ ”
In the syllabus to the case of Goldsborough v. Orr (1823), 8 Wheat. *217, 5 L. Ed. 600, it is said that “where the acts stipulated to be done, are to be done at different times, the covenants are to be construed as independent of each other. ’ ’
In 7 Am. and Eng. Ency. Law (2d ed.) 95, the two classes of contracts are defined as follows: “A contract is entire when by its terms, nature, and purposes it contemplates and intends that each and all of its parts, material provisions and the consideration, are common each to the other and interdependent. A divisible contract is one in its nature and purposes, susceptible of division and apportionment, having two or more parts in respect to matters and things contemplated and embraced by it, not necessarily dependent upon each other, nor is it intended by the parties that they shall be.”
In the ease of Wile v. Rochester Improvement Co., supra, this court uses the following language applicable to this ease: “It is an action to recover instalments of purchase money due; the time for payment of the last instalment and for the execution of the conveyance by the plaintiff not having arrived at the commencement of the action. The promise to pay the instalments, to recover the amount of which the action is brought, was not to be performed concurrently with the execution of a conveyance, but was an independent promise. Therefore, it was not needed in the complaint to show performance, or tender of performance, or readiness and ability to perform on the part of the plaintiff.” To 'the same effect is the case of Walker v. Stimmel (1906), 15 N. Dak. 484, 107 N. W. 1081. It is our conclusion that this contract meets every requirement of a divisible contract, and that the obligation' to pay the $9,000 was an independent covenant, not depending upon a tender of title.
An amended complaint, in the absence of some agreement or waiver, affords the relief obtainable on the facts alleged as of the date of the beginning of the suit, without reference to the date of the filing of the amended pleading. Jordan v. Indianapolis Water Co. (1902), 159 Ind. 337; Pitzele v. Reuping (1904), 32 Ind. App. 237.
Does the maxim “Expressio unius est exclusio alterius” apply to the provisions of this contract relating to the remedies to be pursued in case of default by either party? In other words, Are the appellants by this provision limited to a suit for damages for tho breach of the contract, or to an equitable action for the specific performance of the contract as an entirety? This maxim has been applied to the construction of written instruments, such as deeds, wills and leases; but nowhere have we found it applied to contracts on the subject of remedies. Broom’s Legal Maxims (8th ed.) 650; Wharton’s Legal Maxims (Am. ed.) 87; 2 Coke on Littleton p. 210. Our courts have applied this principle to the construction of statutes. Couchman v. Prather (1904), 162 Ind. 250; Hart v. Smith (1902), 159 Ind. 382, 58 L. R. A. 949, 95 Am. St. 280; Woodford v. Hamilton (1894), 139 Ind. 481. The reason for this rule is stated in 2 Lewis’s Sutherland, Stat. Constr. (2d ed.) §491 thus: “Expressio unius est exclusio alterius. This maxim, like all rules of construction, is applicable under certain conditions to determine the intention of the lawmaker when it is not otherwise manifest. Under these conditions it leads to safe and satisfactory conclusions; but otherwise the expression of one or more things is not a negation or exclusion of other things. What is expressed is exclusive only when
If, in the construction of statutes, “what is expressed is exclusive only when it is creative, or in derogation of some existing law, or of some provision in the particular act,” or when the statute “grants originally a power or right,” we may be aided by testing the provisions of the contract under investigation by applying the reasons assigned in the construction of statutes. The contract specifies the remedy of suit for damage for breach of its provisions, and also provides that “if either of the parties shall fail or refuse to perform the stipulations hereof on their part, then the other parties may by suit enforce the specific performance by the defaulting party of this contract, the execution of a deed as herein provided, and the performance of any other act hereby required of the defaulting parties.” The remedies specified in the contract are available under the law, independent of the contract. No new remedy is suggested by it, and no authority has been cited showing the application of the doctrine of this maxim to contracts specifying remedies. Doubtless a contract could, by specific provisions, limit the remedies to be pursued in case of default; but that is not the question presented by the one before us. This is a question of implied exclusion.
We have sought diligently for authority upon the application of the principle that “the express mention of one person or thing is the exclusion of another,” to remedies named in a contract, and have found none. The reason of the rule excluding things not mentioned fails when applied to a contract specifying remedies available under the law independent of the contract. We do not feel justified in extending the application of this maxim to a subject, to which it has not been applied, so far as we are able to ascertain, and especially so as the reason for the rule does not seem to justify
The law applicable to a contract is to be considered in construing it. Pennsylvania Co. v. Clark (1889), 2 Ind. App. 146.
Considering all the provisions of the contract, and especially those fixing the time for paying the $9,000, and delivering the deed, and the clause relating to the remedies to be pursued in case of default by either party, we think it reasonable to hold that the suit, as brought, was not denied appellants by the provisions of the contract. Appellee cannot be relieved from his obligation to pay in money by his own refusal to pay in property, by delivering to appellants the stock of goods mentioned in the contract. This leaves the two paragraphs of complaint under consideration upon the same footing. We therefore conclude that each paragraph was sufficient to withstand the demurrer.
The judgment is reversed, with instructions to the lower court to overrule the demurrer to the amended first and the third paragraphs of complaint, and for further proceedings in accordance with this opinion.