Booth v. Saffold , 46 Ga. 278 ( 1872 )

McCay, Judge.

It is clear to our minds that the written contract between these parties makes the payment of the $800 and the execution of the “fee simple” deed mutual covenants to be performed cotemporaneously. Saffold stipulates that he will make the deed, and the other stipulates that he will pay $800 “in cash” on the first of January then next, and give his note for the balance to be due at a future time. Evidently by the use of the words $800 in cash they meant something more than a mere agreement to pay that amount on the first of January then next. The word cash imports some absolute payment at the time the other party acts. Ordinarily it means present payment, but under the circumstances here disclosed it can mean but one thing — that Saffold was to make the deed and Booth pay the $800 cotemporaneously — to-wit, on the first of January. In other words, these were to be mutual, dependent acts. The making of the deed on the one side, and the payment of the $800 cash and the giving of the note, on the other side. This is the common sense of the contract, and so, under our law, ought it to be interpreted. See Code, section 4.

Whore covenants are mutual and dependent, a right of action accrues to either party on his performance or on his offer to perform, if the performance is defeated by the fault of the other party: Revised Code, section 2822. Nor is it always necessary that the party offering to perform shall go through the form of regular tender. It would often be a great wrong to the party desiring to perform to require him to do this. In ordinary cases, for the payment of money, there must be a tender. But where by the contract both the parties are to do something, perform some definite act, then an offer to perform by one and a refusal to perform by the other, gives a right of action to the party offering to perform. And that is just this case. Saffold was, on his part, to make the deed, the other to pay the money and give his note. Saffold was not required to execute the deed and tender it to Booth. This would have been useless, since Booth distinctly informed him that he would not perform on his part. He makes a formal offer to perform, and the actual performance is defeated by Booth’s fault.

The settled rule, as laid down in the books, gives to the party offering to perform a right of action if the other party declares he will not or cannot perform. In cases where each party has something to do other than the payment of money, no formal tender is required. An offer to do by one and a refusal to do by the other is sufficient: Saunders on Pleading and Evidence, 1st volume, [209.]

On the making of the agreement, the defendant below took possession of the land and he has not been disturbed in that possession. Why should he keep the land and refuse to pay the money? Perhaps he may never be disturbed, and if he succeeds in his plea he may have the land and not pay the money. This would be grossly unjust, and is not the law. He has Saffold’s agreement, and if he fails to perform it he has his right of action on it. If Saffold were insolvent, or non-resident, or any other good reason were shown why the agreement could not be recovered on, equity would interfere. But even then the defendant could not keep the land and refuse to pay the money.

Judgment affirmed.