Oatman v. Walker , 33 Me. 67 ( 1851 )

Tenney, J.

— The contract containing the covenant alleged to have been broken, recites, that Charles Q,. Clapp and the defendants, conveyed to the plaintiff certain real estate in Portland, by deed dated Nov. 25, 1848, and covenanted “ that if at the expiration of one year from the date of said deed, said Oatman shall prefer to reconvey said land and house,” — and shall offer to do the same, that the undersigned shall accept such reconveyance of said land and house, and shall pay to said Oatman therefor the sum of sixteen hundred dollars.”

This action is for the recovery of the consideration, which was to be paid to the plaintiff, upon his offer to reconvey the land. The defendants, who executed the contract, deny the right to' maintain the action, and their counsel, in the argument, contend that the offer relied upon by the plaintiff, made on Nov. 26, 1849, was not such as to create a fixed liability in the defendants.

The deed from Clapp and the defendants, which was read in the case, purports to be dated on Nov. 6, 1848, but is acknowledged on the 25th of the same month. The delivery was probably on the day last mentioned, and it was undoubtedly the intention of the parties, that the reconveyance should be made, if at all, within one year from the time the deed took effect, which was not improperly called in the contract its date.

It is well settled, that the words “ from the date,” and "from the day of the date,” have precisely the same meaning. The date of a deed is not the hour or minute, when the deed was executed, but a memorandum of the day, when the deed was delivered. This day, in a legal sense, is an indivisible point of time, there being no fraction of a day. Upon this principle, the day on which the instrument is dated, in the computation of time, is excluded. Bigelow v. Wilson, 1 Pick. 485; Wiggin v. Peters & al. 1 Metc. 127; Winslow v. China, 4 Greenl. 298; Pease v. Norton, 6 Greenl. 229. Nov. 26, 1849, was therefore the day on which the plaintiff was bound to make the offer of a reconveyance of the estate, if he intended to hold the defendants liable for the payment of the consideration.

Upon the offer of the plaintiff to reconvey the premises to his grantors at the time stipulated, the defendants covenanted, that they would accept the reconveyance, and pay the consideration. He could not have supposed, when that contract was entered into, that he was obliged to do more, than was necessary according to its terms, to make effectual the re-conveyance. The object provided for in the contract, was a restoration of the parties to the situation, which they held before the conveyance to the plaintiff. Whatever would accomplish this on his part, the defendants fulfilling their contract according to its true meaning, was all which could be required of him, to entitle him to the consideration. If the reconveyance failed after he had done what was necessary for him to do, to make it perfect, by the omission of the other party, the latter cannot excuse themselves from liability, on the ground that he has neglected any form, which they may suppose he should have observed.

The contract on the part of the defendants is joint and not several. They constituted together but one party. The contract contemplates but one offer to reconvey on the part of the plaintiff. He had not the power to make it simultaneously to both, unless they had been together on the day when the offer was to be made, which he could not compel/ The plaintiff met Walker on the day on which the offer was to be made, having a sufficient deed, which he presented, and expressed his readiness to fulfil the contract on his part. The deed was refused by Walker.

If Walker had accepted the deed and paid the consideration, the acceptance would have divested the plaintiff of all interest in the estate, and the reconveyance would have been perfect. It was the privilege of the plaintiff to have made an absolute tender of the deed, and to have relied upon the personal contract of the defendants for the payment of the consideration. The case finds that he did make an unconditional tender of the deed to Walker, which he declined to accept. In that case, if the deed had been received, the title would have passed from the plaintiff, as effectually as it would have done, if the consideration had been paid.

The contract required no demand of the consideration of the defendants by the plaintiff. The tender of the deed, made in a proper manner, was the entire fulfilment of the condition precedent, and entitled the plaintiff to the consideration; and to the maintenance of an action therefor on refusal or neglect to pay it. Though Cook had no knowledge of the tender, the acceptance of the deed would have been as beneficial to him, as though he had personally received it jointly with Walker.

A delivery therefore of the deed to one of the defendants would have been attended with every effect, to which both were entitled by the contract. It follows, that a refusal by one of them in the absence of the other, is a refusal to do that, which was alone necessary for a reconveyance, and which is a breach of the covenant, that the defendants made with the plaintiff. And a breach by one of the defendants, cannot of itself require an offer to the other, when the contract on both sides would have been wholly fulfilled, were it not for that breach.

The question of damages is submitted to our consideration, and has been argued by counsel. The deed which was tendered by the plaintiff to Walker and refused, is now upon the files of the court ready for delivery, when the defendants wish to receive it. In the case of Alna v. Plummer, 4 Greenl. 258, the defendant bid off a pew at auction; a memorandum thereof was made by the auctioneer, and a deed properly executed was tendered to the purchaser, which he refused to receive. The damages awarded were the purchase money and. the interest thereon. The principle of this case was fully affirmed in the reasoning of the court in the case of Robinson v. Heard, 15 Maine, 296. But in that case, the deed had not been tendered or made and executed, and the rule was not applicable.

When a party, who has contracted in writing for the purchase of land, has done every thing on his part to entitle him to a conveyance, on a refusal of the other party, he can demand successfully specific performance. It is certainly reasonable, that the same right should be held by the one, who is to make the conveyance, and receive the consideration. In the latter case, when the deed has been tendered and refused, and now awaits the call of those who covenanted to accept it, it is just, that the latter should be compelled in a suit at law, when damages alone can be awarded, to pay the price, which he had contracted to give, as the damages sustained by him, who had in good faith fulfilled the contract on his part, together with interest thereon.

Defendants defaulted.