Simmons v. Pomeroy

Mr. Justice Cox

delivered the opinion of the court.

On the 2d of April,. 1879, a contract was entered into between George Simmons and Andrew Langdon, the substance of which is, that the party of the first part, Simmons, sells to Langdon all of certain books, furniture and fixtures contained in certain, rooms of a house in Washington, and in consideration of this, Langdon conveys by deed forty acres of land in .Wisconsin,, and also eight hundred acres of government land in Florida, “the same to be satisfactory to Simmons as to title, and to be located by him.” Langdon at once took- possession of the books, and, as the contrary does not appear, we presume that he conveyed the land in Wisconsin. He did not pretend to have title to the land,in Florida at that time, but he had an agreement with the defendant, Pomeroy, by which Pomeroy was to convey to him those lands, and we also infer, from what follows, that, as a consideration for those lands, he was to convey to Pomeroy a house located in Washington, No. 1743 Eleventh street n. w. He not being prepared to convey the land to Simmons, they seem to have made an arrangement all around, by which Pomeroy agreed with Langdon to convey the land so contracted for to Simmons, and, at the same time, the house which Langdon was to convey to Pomeroy was conveyed to Simmons, and the latter assumed to convey it to Pomeroy. Thereupon, Pomeroy and Simmons made a new contract in these terms:

“For value received, I hereby agree to sell to George Simmons eight hundred acres of land in Florida, the patents for the same to be transferred to Simmons as soon as received by me; and I hereby consent to have A. Langdon convey to Simmons the titles to house number 1743 11th street n. w. (subject to the incumbrance now on it), the same to be held by Simmons as collateral security for the perfection of the title to the Florida lands, and, when the title is so perfected, Simmons to return to me the title to the house number 1743 11th street.”

Pomeroy failed to convey the land, and this suit was brought upon that agreement, to recover damages for the failure. It turns, out in evidence, however, that Simmons had, in the meanwhile, conveyed the house back to Langdon, so that he was ■ not ready to convey to Pomeroy, even if Pomeroy had been ready to convey the Florida land; and the defence is, that Simmons having put it out of his power to perform his part of the agreement, there is no right of recovery against Pomeroy on his agreement to convey the Florida lands. The court so held below, and granted an instruction to the jury to find for the defendant.

The answer to that, by the counsel for the plaintiff, is very ingenious. He takes the position that the consideration for this agreement of Pomeroy to convey the Florida land was two-fold; it was, first, the. delivery of these books, and, secondly, the covenantto convey the house on Eleventh street. He says that a delivery of these books to Langdon is what moved Pomeroy to.make this agreement to convey, so that Pomeroy is to be considered as having participated in that consideration and really received it. He says there was on one side a consideration executed and an executory agreement ; on the other side an executory agreement alone. Then he invokes the rule of law that where the covenant on one side is only part of the consideration for the covenant on the other, the covenants are independent, and one may be enforced or sued upon without performing the covenants on the other side, while it is true that a failure on the part of the other side could be used by way of recoupment.

• This proceeds on the mistaken theory that Pomeroy received, directly or indirectly, a consideration in the delivery of those books, &c. Pomeroy had simply a contract with Langdon that the latter would convey the house on Eleventh street in exchange for his Florida lands, and Langdon, in consideration of receiving these hooks, &c., from Simmons, turned that covenant over to Simmons; so that the only consideration to Pomeroy was the agreement to convey this house, which Simmons assumed. He had no interest in the executed part of the consideration of the agreement between Simmons and Langdon.

It is claimed again, they are not mutually dependent covenants because one was to be performed after the other; in other words, after Pomeroy should make title to the Florida land, or when the title was perfected, Simmons was to return the house. The true meaning is, that as soon as Pomeroy should perform, and concurrently with the act of delivering the patents to this Florida land, the plaintiff should convey the house on Eleventh street. It seems to us that Simmons was bound to be ready to convey this house just as soon as Pomeroy tendered to him the patents to this land. If he put it out of his power to convey the house, by returning it to Langdon, as the proofs show he did, he had already broken his part of the agreement and was not in a condition to sue for the violation on the part of Pomeroy. Therefore, on the undisputed facts, the court below did right to instruct the jury to find for the defendant.