7 Wash. 297 | Wash. | 1893
The opinion of the court was delivered by
The plaintiff, appellant here, brought this action to recover the aggregate amount of three promissory notes executed by the defendant to plaintiff on May 31, 1883, at Big Rapids, Michigan, for §2,000, §2,250 and §2,250, respectively, with' interest at seven per cent, per annum,, and due two, three and four years, respectively, after date. The complaint is in the usual form in like actions, and judgment is therein demanded for §6,500, and interest at the rate above mentioned. The defendant, in his answer, admitted the making of the notes, but denied every other allegation of the complaint. As a further answer and defense the defendant alleged in substance, among other things, that he received no consideration for the notes set out in the complaint. That at the time of
The action was begun on May 30, 1891, and the trial was had on December 5, 1892, before the court and a jury, resulting in a verdict in favor of the defendant by direction of the court. The proof showed that the plaintiff had never tendered a deed to the defendant, or offered to perform his part of the contract by conveying or offering to convey the land, before commencing this action or at any time. Testimony was offered by the plaintiff for the purpose of showing that the plaintiff was and always had been ready, able and willing to perform the contract on his part, which testimony the court excluded, and, we think, properly, on the ground that it tended to prove no allegation of the complaint. It is shown by the contract set out in the answer, that the plaintiff agreed to sell to the defendant certain lands therein described for the sum of §8,500, with
It appears that the plaintiff was not personally present at the trial, but his deposition was produced, and such portions thereof as the court deemed material and relevant were admitted in evidence in his behalf. Speaking of the consideration of the notes in suit, the plaintiff therein said:
‘ ‘ The total consideration moving from me to defendant was the land; the total consideration moving from the defendant to me Was the cash payment of §297.50, and the giving of four notes aggregating §8,500, which are the same four notes produced by me, and the execution of the contract with them. I performed the transaction on my part by delivering possession of the land to defendant at that time.5 ’
The note for §2,000 due one year after date, though never paid, it will be observed, is not included in this action, for the reason, as we understand counsel, that it was deemed outlawed at the time of bringing the action.
After all of the testimony on both sides had been introduced, the plaintiff’s counsel moved the court to direct a
The obligation to pay the notes which fell due prior to the time when the conveyance was to be made under the contract, was independent of the obligation on the part of plaintiff to convey, and payment of each of said notes might have been enforced by action as they became due and payable, had the plaintiff seen fit to do so.
But by deferring the collection of the several notes until after the time for the payment of the one last due had accrued, he lost the right to sue upon the several obligations, and could maintain an action only for the whole consider
There is now but a single cause of action existing in favor of either party. The defendant, in order to obtain his deed, must first pay the entire purchase price, and the plaintiff, in order to recover, must show such a performance of the agreement on his part as would entitle him to' the whole of the unpaid consideration. In this case, the plaintiff undertook to collect the purchase price of the premises he covenanted to convey without averring or proving that he had first performed his own obligation by making and tendering a conveyance. This the court would not permit him to do, and its ruling was in accordance both with reason and the well settled principles of law. McCroskey v. Ladd, 96 Cal. 455 (31 Pac. rep. 558); Beecher v. Conradt, 13 N. Y. 108; Eddy v. Davis, 116 N. Y. 247 (22 N. E. Rep. 362); Bohall v. Diller., 41 Cal. 532.
Nor do the learned counsel for appellant question the general rule of law which we have stated, but they insist that the facts in evidence show that the case at bar falls within a recognized exception, that a vendor in such cases is excused from making a tender where it would be a vain and useless act. But a sufficient answer to this contention is, that the plaintiff alleged uo fact in his complaint showing either an inability on his part to make a tender, or that a tender if made would have been a vain or useless act. The plaintiff brought an action at law simply to recover the amount evidenced by defendant’s notes, completely ignoring his own obligations under his contract, and he must now abide the consequences. Other questions are
The judgment of the lower court is affirmed.
Dunbar, C. J., and Scott, Hoyt and Stiles, JJ., concur.