Reid v. Edwards , 7 Port. 508 ( 1838 )

COLLIER, C. J.

— The arguments at the bar have presented this case to the court, as if the legality of the contract disclosed in the first count of the declaration, was now open for revision. A slight examination of the state of the pleadings would doubtless have convinced the counsel that they were laboring under a misapprehension. Had the plaintiff have desired to avail himself of the invalidity of that contract, his course was plain — he had only to demur to that part of the declaration. But instead of doing this, he has by his plea, tendered an issue of fact to the entire declaration, and on this issue, was the case tried in the Circuit court. It is clearly competent for a party to admit the legal sufficiency of the cause of action with which he is charged by the pleading, and only put his adversary upon proof of its existence in point of fact.

The first count set forth the cause of action as it was proved at the trial, and if it did not show a liability, the plaintiff should have demurred to that count, unless he was unwilling to avail himself of a legal ádvantage. His omission to except to the declaration in the Circuit court, precludes objection here. If injustice has been done him, the fault is not in the law, but in himself, in not presenting his defence in such a form as to authorise its consideration.

It will follow, from what we have said, that the charge of the Circuit court was correct, so far as it assumes the right of the defendant in error to recover, if he has paid the sum of money which he stipulated with the plaintiff to pay him: the payment of the money was the only act to he done by the plaintiff. So that the court merely determined, if the defendant had performed his part of the contract, under the state of the pleading, the plaintiff was responsible to him in damages.

It is, however, argued, that the charge to the jury is erroneous, in supposing that the subsequent levy by the sheriff afforded no excuse for the non-performance of the plaintiff’s contract. The rules for the construction of contracts, whether verbal, written, or under seal, are the same. All contracts are to be performed according to their legal interpretation, and where a party undertakes expressly for the performance of some act, his positive engagement casts upon him a duty, the discharge of which cannot be excused, by showing his inability, by reason of the lawful interference of som.e third person — (See Chitty on Con. 272, 273.) By neglecting to qualify his contract, so as to make such an excuse available, he waives it as a defence against a recovery of damages for non-performance. This point we understand to have been in effect determined in Perry vs Hewlett, (5 Porter’s R. 318.)

It is needless to consider what (under a proper state of case,) would be the effect of the payment of the money by the plaintiff, to the execution creditor, as the question was not raised below, and it does not appear when the payment was made, whether before or after suit brought.

Considering the case only as it is presented by the pleadings, and not as it might possibly have been presented, we think there is no error in the instruction given to the jury.

The judgment is consequently affirmed.