Howe v. Mitchell , 17 Me. 85 ( 1840 )

The opinion of the Court was drawn up by

Sheeley J.

There can be no doubt of the intention of the parties, that the title was to be conveyed, and payment made and security given at the sainé time. For the contract provides, that one fourth of the purchase money should be paid on delivery of the deed, and that security should be made for the remainder by notes and a mortgage of the premises. The provision, that the deed, money, and notes should be deposited in the Canal Bank in Portland, does not change the rights or duties of the parties in this respect, for they would remain there subject to the control of the party making the deposit, until a delivery should take place. There is no provision for a deposit of a mortgage by the plaintiff, which would clearly shew, if it were not otherwise apparent, that other acts must take place after the deposit before the title could pass or the contract be completed. And the parties understood this, for the contract provides for the money and notes to be left there “ till the bargain can be fully finished and completed.”

There being no change of the rights of the parties on this point by the provision for a deposit, it still remained the duty of the one, who would exact performance of the other, to prove, that he was ready and willing and would have performed, if the other party had. It is not therefore necessary to decide, whether a true construction of the contract would have required the plaintiff to deposit the money and notes within the same ten days allowed to the defendants, or within ten days thereafter, as the report states, that he did not at any time make such a deposit. And without this he could not shew a'readiness on his own part to perform in the manner provided for in the contract. And this Court has repeatedly decided, that such proof is indispensable to enable him to recover against the defendants.

Plaintiff nonsuit.