Whiteside v. Jackson , 1 Wend. 418 ( 1828 )

By the Court,

Woodworth, J.

It is well settled, that on a bill of exceptions, the party excepting is confined to the point or points excepted to. Although all the evidence given at the trial may be contained in the bill, the court cannot take notice of any matter that is not specifically stated as a ground of exception. It is urged, in this case, that the contract was subsequent. to the time of the demise, or, at all events, the time allowed to the defendant to make the first payment was subsequent; that it does not appear that any evidence was given against McGee, one of the defendants, and yet there is a verdict against both. The answer to these objections is, that it is not stated in the bill that any exceptions were made at the trial on these grounds. The defendant moved for a nonsuit, and stated several grounds, but the defect of evidence against McGee was not one of them. The court overruled the motion ; no exception appears to have been taken to this decision ; consequently the two points, to wit, a defective demise and no proof against McGee, are not brought before us. We cannot travel out of the bill of exceptions, and decide whether the nonsuit was correctly denied. As to McGee, the other defendant, it does not appear that any notice was taken of him by either party; and yet we cannot affirm that no evidence was given to implicate him. In a bill of exceptions, it is only necessary to detail so much of the evidence as may be necessary fully to present the point of exception.

The counsel for the defendant seem to have acted under an erroneous impression, that an exception to the charge necessarily brought into review all the questions decided in the course of the trial. This is clearly a misapprehension of the rule which governs when a bill of exceptions is taken.

Having disposed of these points, the only question remaining is, whether there was a subsisting contract when the action was commenced.

A contract of sale and purchase was made and subscribed by the parties. It would have been more satisfactory, if the written contract bad been inserted in the bill; as it is not, we must collect the contents from the testimony of Field. He says, the terras were, ten per cent, to be paid down, and the remainder in. three annual instalments, and that the article was-drawn agreeable to these terms; from which I understand, that by the article, it was stipulated that Whiteside should pay down ten per cent. Such a contract has been held over and over again in our courts, a recognition of the vendor’s title, and precludes the purchaser from denying it. In case of forfeiture, he is a mere tenant at will, and not entitled to notice-to quit. By entering into the contract, Whiteside rested on the right acquired under it; if that fails, the plaintiff is entitled to recover: so that the question is, was the contract consummated, or, in other words, has the defendant done enough to avail himself of the protection afforded by the contract 1

This question may be considered in two points of view : 1. Was the article delivered to Sibley as an escrow, liable to be enforced by the defendant, if within a fortnight he paid the ten per cent. 1 2. If not so delivered, but only for safe keeping until the money was paid, then what are the rights of the defendant under it 1 In either point of view, I think the result will be the same.

The question whether the contract was consummated was properly submitted to the jury. The defect in the charge is, in not stating to the jury whether, if the money was not paid in a fortnight, the contract was at an end. As far as the court went, there was - no error ; they were not called on by the counsel to go farther. - The omission, therefore, to state the law more particularly as it arises on this case, is not the subject of an exception. If the article is to be considered as an escrow, then, by reason of the non-payment at the time appointed, the defendant’s right to claim any thing under it ceased ; and the vendor’s right at law to recover the land became perfect, because, by the contract, the defendant bad admitted the plaintiff’s title, and had failed to comply with the conditions, which, if performed; would have given him a right to retain the possession. .

But if this was not a delivery upon condition, then it stands on the footing of a contract ; whereby the plaintiff agrees to sell, and the defendant agrees to pay ten per cent, down, and tire residue in three yearly instalments. Now the legal operation of such a contract is, that if the party fails to make payments as stipulated, for any default, an action of ejectment lies to recover the possession. . It is evident the defendant did not pay down the ten per cent, according to the written article, by which he bound himself to pay it immediately. Admitting the principle, that a written contract, before it is broken, may be extended as to the time of performance, and that the plaintiff’s agent did extend the time for paying the ten per cent., still the defendant failed to comply ; for although there is some collision in the testimony, as to the time given to pay, the weight of evidence is, that it was a fortnight, and so the jury must have found, by giving a verdict for the plaintiff They must have been satisfied that the contract was not performed on the part of the defendant, and therefore found against him. The ground of non-performance, is the nonpayment of the money at the time appointed. Besides, it appears the agent was not authorized to extend the time.

These remarks are made to show that the jury arrived at a correct conclusion, and that the cause has been properly disposed of. But had it been otherwise, and the jury bad found against evidence, it could not be corrected on the bill of exceptions ; it would be matter on which to found a motion for a new trial.

On the whole, it appears to me that the exception taken at the trial cannot be supported, and that the judgment of the court below must be affirmed.

Judgment affirmed.