Webster v. Tibbits

19 Wis. 438 | Wis. | 1865

By the Court,

Dixoh, O. J.

It is a familiar rule that the time in which a written contract is to be performed may be enlarged, or the manner of performance changed, by a subsequent parol agreement; and that a performance .according to such parol agreement discharges the written contract. The following are some among the earlier cases in which the rule is strongly illustrated: Cuff v. Penn, 1 Maule & Selwyn, 21; Fleming v. Gilbert, 3 Johns., 528; Keating v. Price, 1 Johns. Cases, 22 ; Robinson v. Batchelder, 4 N. H., 40. And it seems not very material to discuss the reasons of the rule ; for whether it be on the principle that he who prevents a thing being done shall not avail himself of the non-performance he has occasioned, as in some of the cases, or that it is a waiver or parol dispensation of the performance of the original contract, or an accord and satisfaction, or a kind of substituted performance, as in other cases, the result is the same. All agree that a compliance with the parol agreement is in substance a compliance with the written contract. It is equivalent to an actual performance. I prefer the definition of Lord Ellenboeough in Cuff v. Penn, that it is a substituted performance. In this case the defendants Samuel FT. Tibbits and Asa Foster bought the land, and the written article of agreement recites a conveyance to them. The complaint avers that at their request the conveyance was made to Sally P. Tibbits and Asa Foster. This was a performance of the condition precedent, if such it was, and a good consideration for the undertaking of Samuel FT. Tibbits and Asa Foster to pay off the $4,470 of the mortgage which was then upon the land. It was equivalent to a conveyance to Samuel H. Tibbits and Asa Foster. If A owes B a sum of money upon written promise to pay, and afterwards B directs A to pay the money to 0, and A does so, it is a satisfaction of the debt. So if A covenant with B to convey to him a tract of land, and B subsequently requests A to convey the land to 0, and A does so, it is a satisfaction of the covenant. And if the purchase money, or any part, be still due and unpaid from B to A, A may have his action against B to recover it. In bringing such action he would do what the plaintiff has done here ; he would state the facts showing the substituted performance, and claim a recovery.

This view of the law seems to dispose of the first point in the argument of the counsel for the defendants, and portions of the second and third points. Those parts of the second and third points in which it is urged that the consideration has failed, or that the contract is wholly unperformed on the part of the plaintiff, because the land was afterwards sold under the mortgage, are obviously untenable, for this reason: It was not an absolute and unincumbered estate for which the defendants bargained. They purchased the equity of redemption of 270 acres of the land, and the conveyance of that equity, in the manner stated, constituted a valid consideration for their undertaking to pay off so much of the mortgage, and also, upon due performanceof the contract on the part of Webster, for their agreement to satisfy the mortgage upon the 55 acres retained by him, or, in default of that, to pay him the $3,000 named in the bond ; and if afterwards, through their neglect to pay the $4,470, the whole estate was sold to satisfy the mortgage, and their equity lost, it was no failure of the consideration. The consideration vested upon the conveyance of the equity of redemption to them or to the persons designated by them as the proper parties to receive it. It is true that the article of agreement recites the undertaking to be “ for and in consideration of a certain deed of land from said Samuel Webster to said Foster and Tibbits for two hundred and seventy acres of land,” &c. The counsel emphasizes these words, and insists that the defendants did not get the land, or rather that they lost it by the foreclosure. It may be that the words “ conveyance of land,” taken by themselves, or standing in some other connection, would be construed to signify the transfer of an absolute title; but such was clearly not the sense in which they were employed in this contract. It was proper to speak of the transfer of the equity of redemption as a conveyance of land, and that was the manner in which the parties did speak in the contract before us. It would be not only very illogical, but most manifestly contrary to the intention of the parties, to hold, on the face of the contract, that the defendants bargained for or supposed that they were to have an absolute title, that is, a title free from the in-cumbrance of the mortgage. Their counsel does not contend for that, and still we do not see, if his argument is sound, but such must be the result.

Whether the complaint is bad in substance, then, depends upon the other objections urged.

It is insisted that Webster did not perform the contract on Ms part, for two reasons: Eirst, that he did not pay the balance of the mortgage and interest in a manner acceptable to Goodrich; and second, that the sum which he did pay was too small. We cannot agree with the counsel upon either of these propositions. Any payment which was in law a discharge of so much of the mortgage debt as Webster was bound to pay, was a payment acceptable to Goodrich within the meaning of the contract. It was acceptable because he was bound to accept it. The parties did not contract that the payment should be mentally agreeable or pleasing to Goodrich. The meaning was that the payment should be such as Goodrich would in fact accept, or in law be bound to accept. The sheriff was his agent for the purpose of receiving payment of the mortgage, and a payment to the sheriff was a payment to him. Webster paid the money to the sheriff, who accepted it, of which the defendants Samuel H. Tibbits and Foster had due notice. If then they had paid the proportion of the mortgage debt which fell to them, there would have been no sale, and the title under the conveyance of the equity of redemption would have become perfect and indefeasible.

As to the amount of Webster’s payment, that depends on the proper construction of the contract. We think clearly that Tibbits and Foster were bound to pay the accruing interest upon the $4',470 from the date of the contract. The mortgage was originally for the sum of $4,540. Of this sum Tibbits and Foster were to pay the sum of $4,470, and “ the balance of the mortgage and interest ” Webster was to pay. We understand by this that Tibbits and Foster were to pay the $4,470, as of the day of making the contract. It is true that they were to do so in such payments as had been or might thereafter be agreed upon between them and Goodrich, and to procure a discharge of the mortgage upon Webster’s part of the farm, within two years. But then their undertaking to pay so much of the mortgage at that date was absolute. If they had not agreed or could not agree with Goodrich for a delay, the payment was to be immediate. And if they did get time, it would of course be upon the condition of paying the interest to Goodrich, and not charging it as an additional sum upon the portion of the mortgage to be paid by Webster. As between them and W ebster it was to be treated as a present payment. The counsel dwells upon the words “ and interest,” as if they were intended to bind Webster to pay all the interest which might accrue after, as well as that which had accrued before the making of the contract. It was understood at the time that considerable interest had already accrued and was in arrear upon the mortgage. It was to such interest that we understand the reference. It is an equivalent expression for principal and interest, that is, the principal and interest then due.

A further objection is, that the complaint does not properly aver a breach or default of performance by the defendants. We are of opinion that this objection also is not well taken. The breach is well assigned. It is that the two years have expired in which the defendants covenanted to release the fifty-five acres from the lien of the mortgage, and that they now neglect and refuse to perform the same, or to make any restitution or equivalent compensation.

These remarks we believe dispose of all of the objections to the substance of the complaint as against the defendants Samuel H. Tibbits and Asa Foster.

It is true, as urged by the counsel, the complaint states no cause of action against the defendant Sally P. Tibbits ; and if she had demurred separately, instead of joining her co-defendants, judgment must have gone in her favor. But a joint demurrer by two or more defendants, that the complaint does not state facts sufficient to constitute a cause of action, must be overruled, if a cause of action is stated against either defendant. Woodbury v. Sackrider, 2 Abbott’s Pr. R., 402; Peabody v. Insurance Co., 20 Barb., 339.

The proceeding must be regarded as an action by the plaintiff, as administratrix, to recover the penalty of the bond. Such an action can be maintained by her in her representative capacity. To such an action Sally P. Tidbits is not a proper party, and no cause of action is stated against her. But she should have filed her separate demurrer.

But if the land is claimed, and suit is brought for that, it must be in the name Íí the heirs, or they must be parties. And then, to show a cause of action against Mrs. Tibbits, it must also be averred that the consideration for the conveyance from Goodrich to her was from her husband. If she had a separate estate, and paid for the land with her own money, or if the money was furnished by some person other than her husband, the land in her hands would not be affected by any trust growing out of the contract. She was no party to the contract.

Order affirmed.