Warren v. Wheeler , 21 Me. 484 ( 1842 )

The opinion of the Court was drawn up by

Shepley J.

— The first objection is to the form of the action. In the case of Fenner v. Mears, 2 Bl. R. 1269, the defendant made a bond to one Cox, and indorsed upon it an agreement to pay to any assignee of Cox; the plaintiff, being such assignee, maintained assumpsit on that agreement. That case has been approved in many subsequent cases. It is then said, the promise to the plaintiff is not binding for want of consideration and of mutuality. In the case of Innes v. Wallace, 8 T. R. 595, the Court say, “ they were clearly of opinion, that the assignment of the bond to the plaintiff was a good consideration for the assumpsit of the defendant.” And it was so decided in Crocker v. Whitney, 10 Mass. R. 319 ; and Parkhurst v. Dickerson, 21 Pick. 310. The case of Forth v. Stanton, with the notes appended, 1 Saund. 210, is not opposed to this doctrine. The decision in that case is, that there must be a new consideration to support a promise by an executrix to pay de bonis propriis.

The second objection is, that the plaintiff should 'have given the defendant “ notice of his desire to purchase, that he might have an opportunity to provide the deed.” No doubt such was the duty required by the bond; but the defendant, in his written agreement indorsed upon it, says, “ I hereby acknowledge notice to have been given on the within in due time, and demand of a deed.” There was no occasion for a further notice or demand; for the defendant had acknowledged, that these preliminary steps had been taken, and that the cash payment had been made; and had thereupon agreed to deliver a deed within twenty days.

The third objection is, that the covenants in the bond, and the stipulations in the agreement indorsed upon it, were dependent; and that the plaintiff should therefore, have made and tendered the notes before he could call upon the defendant to perform. There can be no doubt, that it was the intention of the parties as expressed both in the condition of the bond, and in the agreement indorsed upon it, that the deed should be delivered and payment made by money and 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 on 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 agree-merits. They are admitted to be effectual. Have the parties in this case agreed, which should first prepare and ofi'er to perform? The defendant in the agreement indorsed upon the bond, as before stated, acknowledges notice of the acceptance of the terms of purchase, a demand for a deed, and the receipt of the cash payment of a thousand dollars, and then says, “ I hereby agree to deliver to Henry Warren, assignee, or his assigns, a good warrantee deed within twenty days from date. And then said Warren, or assignee, shall deliver to me the notes mentioned within.” The intention and effect of this language cannot be misunderstood. The defendant acknowledges, that the previous acts required of the other party had been so far completed, that it became his duty to prepare and present a deed, and then receive the notes on its delivery; and this he promises to do within a certain time. And this he has never done or offered to do. And it is as clearly a breach of his contract, as if he had promised in writing to pay the debt of another within a certain number of days, and then receive an assignment of the debt to himself, and had wholly neglected it.

Other objections have reference to the admission of testimony relating to the value of the land, and to the instructions respecting the measure of damages. It might not be a very unreasonable inference, that the value of three acres of land would not vary greatly from that “ lying in the neighborhood,” or from that in the same place “ more remote,” unless it should be proved to be of a different quality, or to be situated in the densely settled part of a village or city. And it does not appear, that this was so situated, or that testimony was received of the value of lands at any great distance from it. It would be circumstantial evidence only of the value of the three acres; and as such it might be received.

The instructions to the jury respecting the measure of damages, as well as upon the other points in the case, appear to have been correct.

Judgment on the verdict.