Washburn v. Dewey

17 Vt. 92 | Vt. | 1843

The opinion of the court was delivered by

'Williams, Ch. J.

The case is a very clear one for the orators, and I cannot see why it was brought here on appeal. The defendant, on the 3d day of May, 1838, made a contract, by which he became under obligation to deed to the wife of Washburn a certain piece of land, on her paying him a note which he held against her husband. The wife was the person to be benefited, as appears abundantly both from the proof and the contract itself. Payment of the note was tendered. The case of the orators was therefore fully made out.

The excuses for not performing this contract are, if not frivolous, at least very unsatisfactory. The oratrix, having tendered to the defendant the money for the payment of the note, had nothing farther to do, until the defendant manifested his willingness to comply with his obligation, and demanded the money. There is no pre-tence, therefore, for saying the “ tender was not kept good.”

The defendant made this contract for the benefit of the wife, and' undoubtedly understood the nature and extent of his contract, the subject about which he was contracting, and the parties to the contract. It is manifestly unjustifiable, as well as inequitable, to attempt to connect this transaction with other notes and contracts which the husband had made with the defendant, and which were in existence at the time the defendant made the contract, the performance. of which is insisted on in the orators’ bill. The insolvency of Washburn, or his inability to fulfil his contracts, affords no legal or equitable excuse to the defendant for not performing his contract with the wife of Washburn.

The value and situation of the 45a acres, as part of the farm, may render it desirable for the defendant to retain it; but if so, he should not have contracted and agreed to deed it to the oratrix. The orators might have recovered of the defendant, at law, damages, for the non-performance of the contract; but that is no reason why they should not have a decree for a specific performance. The remedy at law might not be adequate, and they had clearly a right to select the remedy in chancery.

The motion to dismiss is wholly unfounded. In the first place the facts on which it is attempted to he sustained are not proved. The matter in controversy is clearly more than fifty dollars. In the second place, the motion does not appear to have been presented to, and acted on by, the chancellor.

The decree of the chancellor is affirmed, with an alteration as to the time in which the orators aré to pay the amount of the note, .and the defendant to deed the land; and the cause will be remanded to the chancellor, with proper directions to carry the same into effect.