Chesley v. Welch , 21 Me. 50 ( 1842 )

The opinion of the Court was by

Shepley J.

— The contract between the parties bearing date on the seventeenth day of November, 1838, was not designed to authorize the referee to open and publish his award to the parties. The clause, which states “ that the parties shall have the report of the referee opened as soon as the same is made,” shews that a future act was contemplated as necessary to be performed by them. This was only the agreement requiring that future act to be done. They did not expect, that the referee would deliver his award or disclose its character to the party, against whom he had decided, without the presence or the written consent of the other party. It appears to have been their intention to avoid the delay, which might happen by having the award presented to a Court, which might not be in session for months after it was made, and to compel by the agreed damages an earlier performance, than could be enforced by law. The report of the referee does not appear to have been opened before it was returned to the Court; and the event, which was to determine that payment should be made within twenty days after the award, has never happened. If it had been the duty, or even within the power of the defendant alone to have caused the report to be opened as soon as the same was made, this would not have been any sufficient excuse. But this he was not required to do without some further act on the part of the plaintiff. The delivery of the report into Court or its publication there was not the event, upon which the payment within a certain time was to depend. In the case of Thorpe v. Thorpe, 1 Salk. 171, Holt C. J, says, “ when a certain day of payment is appointed, and that day is to, happen subsequent to the performance of the thing to be done by the contract, in such case performance is a condition precedent and must be averred in an action for the money.” If one would enforce a contract, which operates as a penalty, although the damages may be liquidated, he should shew, that he has performed all acts incumbent on him to perform to bring the case clearly within the contract, The parties in this case did not contract to pay within twenty days after the award upon the agreement and condition, that it should be returned to Court and there opened, but on the agreement, that it should be opened as soon as made. The plaintiff therefore does not present a case within the terms of the contract or the intention of the parties, when they entered into it.

Plaintiff nonsuit,