Low v. Marshall , 17 Me. 232 ( 1840 )

The opinion of the Court was drawn up by

Shbpley J.

The obligation of the plaintiff to convey was upon condition, that the defendant, within one year, should pay him at the rate of one hundred dollars per acre for the land; and this condition' is recited in the obligation ' of the defendant to purchase. The conveyance was to be executéd and the money to be paid at the same time; and neither was obliged to perform without performance by the other. The party that would exact performance of the other, should prove that he was ready and willing to perform at the proper time.

When the decision is upon the pleadings, as in the cases of Rawson v. Johnson, 1 East, 203, and Tinney v. Ashley, 15 Pick. 546, averments that the party was .ready and willing to perform were held to be sufficient. But in those cases, if the defendants had taken issue upon the facts, it would. have been necessary for the plaintiff to have proved that he w?as ready at the time, and should have performed if the other party had. In Rawson v. Johnson, Lord Kenyon says, “ to be sure under this averment the plaintiffs must have proved that they were prepared to tender and pay the money, if the defendant had been ready to have received it, and' to have delivered the goods.” Any other rule, whatever expressions in any decided case may give it countenance, would be subject to this absurdity, that where neither party had manifested’ any readiness to perform until after tbe time had elapsed, each might call upon the other as being the party in fault for damages.

To entitle the plaintiff in this case to recover, he must have proved, that at the expiration of the year he was ready to have delivered the deed of conveyance upon payment of the money. Heard v. Wadham, 1 East, 619. It does not appear that the plaintiff proved any readiness or willingness to perform until after the expiration of the year. After that time he was not bound to convey, and could not require the defendant to purchase.

Exceptions overruled.