Augusta Bank v. Hamblet , 35 Me. 491 ( 1853 )

Tenney, J.

— The first objection made to the maintenance of the action arises from the supposed want of authority in the president of the bank to execute the bond, referred to in that of the defendant, now in suit, in behalf of the corporation, and it is urged therefore that there is no validity in the bond given by the bank to the defendant; and hence that of the defendant is destitute of consideration, and one cannot be enforced, while the other may be avoided.

The votes of the stockholders and directors of the bank, introduced for the purpose of showing the power of the president to execute certain instruments, does not embrace bonds for the future conveyance of real estate, in terms. But by the vote of the stockholders on Feb. 22, 1814, he is authorized to execute instruments, which the directors may order .for the convenient managing and disposing of any estate of the bank, and to affix thereto, the seal of the corporation.

On July 22, 1848, the directors empowered the president by vote, to sell and convey the land described in the bond for the prices and in the manner therein mentioned. It is not necessary, that each instrument appropriate for the convenient managing and disposing of the estate of the bank, should bo specified in a vote of the directors, provided the general power to perform acts, which may embrace the execution of such instruments, is conferred. The authority to sell as well as to convey real estate, implies a power to negotiate and make a bargain with a purchaser, prior to the conveyance; and if the latter for any reason cannot follow, the negotiation and bargain, immediately, the attempt to make a conveyance might be fruitless unless the bargain is made obligatory upon the parties. It is not an unreasonable construction of the vote, that the president should be authorized not only to convey real estate, but if necessary, under the power to sell, to make a binding contract, to convey at a future time.

But this action is upon a sealed instrument. Its character imports a consideration. It recites all the material parts of the condition of the bond given to the defendant. The whole contract is fully disclosed therein. Among other recitals, it states that the plaintiffs and Thomas W. Smith, on the day of its date agreed with the undersigned, and by their bond bound themselves, &c. The bond here referred to, the bank have not repudiated, as not being their deed, or done any thing indicative of a design to avoid its obligations, on account of any want of authority in the president to execute it. The defendant is estopped to escapo liability bn this ground.

2. It is contended that the conditions in the defendant’s bond are dependent, and that certain conditions were to be performed by the plaintiffs, either preceding any thing required of the defendant, or simultaneously. If such was the character of the transaction, this action cannot be maintained. It is well settled, when acts are to be performed by each party at the same time, neither party can maintain an action against the other without performance or an oiler of performance on his part. But if it is the design of the parties, that one party alone is to do the first act, after the execution of the contract, and by failure, to commit a breach thereof, the other party may be excused from tendering a performance of the acts to be done by him. Such was the case of Warren v. Wheeler, 21 Maine, 484, upon a contract not under seal, in which it was agreed by the latter, that he would deliver to the former, or his assignee, a good warranty deed, within twenty days from the date of the -contract. And then the other party, or assignee, should deliver to him, the notes mentioned, &c. The Court say there can be no doubt, that it was the intention of the parties, as expressed in the agreement, that the deed should be delivered, and payment made by money or notes at the same time. And neither party would be obliged to perform unless the other did. In such case the general rule is, that the party who would claim performance from the other, must show a readiness and offer to perform his own part. But this rule does not prevail, when the contract itself determines, which party shall first prepare and offer to perform. When the parties have agreed upon this matter, neither the law nor the tribunals break in upon or disregard such agreement.

The bonds of the respective parties were executed on the same day, and are part of the same transaction. It was the intention of the plaintiffs to convey the land, and of the defendant to take the conveyance on the terms described in the bonds, it was not required by the contract, that the former should pass the title without the payment of the consideration, or the security therefor; or that the latter should give the security without receiving the title. It is manifest they were to be . simultaneous acts. But it was the contract, that the defendant on a day and place certain, should pay or offer to pay the sums, stipulated as the consideration of the conveyance as specified in the bond. On failure to do this, the bond was to be effectual against him ; and by doing this, the condition was to be saved. Not having performed his agreement, the condition of the bond has been broken, and the defendant is liable.

It was not the design of the parties as disclosed by the bond, that on failure of the defendant to perform the condition and receive the conveyance, the plaintiffs should retain the title and receive the sum of one thousand dollars. The sum named in the formal part of the bond was not intended as the damages estimated by the parties for the breach of the condition. According to the agreement of the parties, the defendant is to be defaulted, judgment to be entered for the penal sum in the bond, and execution to issue for such sum as shall be determined by the Court, or a Justice thereof.

Shepley, C. J., and Howard and Appleton, J. J., concurred.