Pead v. Trull , 173 Mass. 450 ( 1899 )

Holmes, J.

This is an action of contract upon an indenture by which, in consideration of the plaintiff Bead’s covenant, Whitman covenanted to convey certain land to Bead within forty-five days, and Bead, in consideration of Whitman’s covenant, covenanted to convey certain land to Whitman within forty-five days, and further covenanted to pay him fifteen hundred dollars upon receiving a deed of Whitman’s land; and to give Whitman a note for three thousand dollars secured by second mortgage on the Whitman land and to assume and pay a first mortgage with interest from the date of the conveyance to him. Then followed mutual covenants to pay five hundred dollars as indemnity and liquidated damages in case of failure to perform the agreement. Before the forty-five days elapsed Whitman died, and on the last day, no administrator having been appointed, the plaintiff, to save his rights, tendered performance on his side to the widow of Whitman and to the defendant Trull, who had been Whitman’s attorney in other matters and who afterwards was appointed administrator, but, apart from other technical difficulties, the deed tendered by the plaintiff ran to Whitman, the dead man.

It appears to us that the covenants ought to be construed as mutually dependent. There is some little suggestion of independence to be drawn from them, but nothing on the whole strong enough to overcome the presumption that in an exchange performance on the two sides is to be concurrent. Goodisson v. Nunn, 4 T. R. 461. In actions upon such covenants the plaintiff must show performance on his side, or readiness to perform, and a refusal by the other party. Brown v. Davis, 138 Mass. 458. Hapgood v. Shaw, 105 Mass. 276, 279. Smith v. Boston & Maine Railroad, 6 Allen, 262, 273. But in a case like the present, under our statutes the administrator was the natural and proper person to perform the contract, as he was the one to receive the money from the plaintiff. Pub. Sts. c. 142, § 1. It was impossible to demand performance of him, or to offer it to him within the forty-five days, and therefore the plaintiff was not in default for not having done so, and the contract was not discharged at the end of that time. Of course the contract was not discharged by the death of a party.

The plaintiff’s tender, although defective as such, is evidence that he was ready and willing to perform and that the administrator knew that he was. But it did not put the administrator in default. All that appears is that the latter has not caused the land to be conveyed to the plaintiff. It does not appear that he ever has repudiated the agreement. On the other hand, it does not appear that the plaintiff ever has renewed his offer since the administrator was appointed. Assuming as we do that the plaintiff had a right to demand performance within a reasonable time after the appointment of an administrator, it does not appear that the judge has not found that he suffered more than a reasonable time to elapse, and so lost his rights. We are compelled by the terms of the report to direct a judgment on the finding. If in fact the finding was based solely on the ground that the plaintiff had lost his right's at the end of forty-five days, that ground is insufficient, and the rescript of this court will not prevent an application to the judge who heard the case to reopen the cause, or to enter what judgment he deems proper under this decision. Platt v. Justices of the Superior Court, 124 Mass. 353, 355. Kenerson v. Colgan, 164 Mass. 166.

Judgment on the finding.