Smith v. Davis

Opinion of the Court, the

Hon. George W. Wall, Judge.

This was an action of assumpsit upon an instrument in writing similar to that involved in the case of Williams v. Davis, November term, 1891, of this court. To the declaration, as amended, a demurrer was interposed. The demurrer was overruled and the defendant failing to plead, further judgment was rendered against him for $262. The record is brought here by writ of error at the instance of the defendant.

It is first urged that there is no right of action in the plaintiff. By the contract it was expressly provided that the payments should be made to the .trustee to be selected. By virtue of his appointment as trustee, the plaintiff became entitled to demand the money, and there is no reason why he should not be permitted to enforce the demand by suit. Nor is there anything in the point that he was in a certain degree agent or trustee for both parties ip. the management and disbursement of the funds. It was the duty of the subscribers, of wdiom defendant was one, to make the payments to him, and they can not be permitted to omit this duty on the plea that in reference to the use of the money he was required to regard certain provisions in the contract -which were intended for their protection.

The citations as to the impropriety of one being an agent for both parties are inapplicable, and while there are many instances where the principles stated in the brief have been laid down, it will be found that the circumstances of those cases are very different from the one at bar where, by express contract, the parties have appointed an agent or trustee, and have expressly agreed to pay the installments of purchase money to him. Ño further elaboration of this point is deemed necessary.

' Equally untenable are the objections that the declaration fails to show that defendant agreed to the plan adopted for the selection of the lots, and that it does not appear that he was notified of the meeting of August 11th, when the lots Avere distributed among the subscribers. We think the averments are sufficient on both points.

It is urged the suit was prematurely brought. This position rests upon an incorrect vieAV of the terms of the contract, which provided that $100 should be paid at or before the selection of the lot, $100 Avhen the factory building Avas erected, and $50 one year after date; to wit, the date of the contract.

It appears by proper averments that all these contingencies have happened, and of course the several installments should bear interest from the dates when they were due, respectively. It is distinctly averred that the building Avas erected, and manufacturing operations had begun before March 1, 1891, and thus A\ras accomplished what was obviously intended by the contract. Hence there is no hardship in construing the Avords “ one .year after date ” according to their ordinary meaning, and there is no just occasion to seek a different construction based upon the supposed or supposable intentions of the parties in case the erection of the factory building had been delayed beyond one year from the date of the contract.

The argument drawn from a subsequent provision of the agreement, that within one year after starting the factory a certain quantity of manufactured goods should be produced and a certain number of hands should be employed, is, in our opinion, without force.

The language “ one year after date" naturally and plainly means one year from the date of the contract, and it is a perversion to say that it means one year from the completion of the building and the commencement of the operations of the factory.

Where parties employ language having a plain and ordinary meaning it is not competent for the courts to destroy that meaning, even though it may appear that in a certain contingency the result would be somewhat harsh or even unexpected.

It is to be presumed that the parties fully considered all contingencies, and if they did not, that they intended to abide by the terms of the contract in any event.

A further objection, made in the statement but not pressed in the argument, is that the trustee could not tender the deed, and that as no deed was tendered by the owners of the land, there was no right to demand the final payment. We understand that the deed referred to in the declaration was from the owner of the land and that the objection is, the tender must have been made by him and not by the plaintiff.

The payment was to be made, not to the land owner but to the plaintiff, the trustee; hence, it would be proper for the latter to make the tender. The payment of the money and the delivery of the deed being concurrent acts, it would of course be expected that the man who was to receive the money should be ready to furnish the deed, though it had been executed, necessarily, by the party owning the land.

Ho other objections are urged, and the judgment will be affirmed.