Taylor v. Bullen

Curia, per

Savage, Ch. J.

The question is, whether the plaintiff below was not bound to prosecute those who were in possession of Stroud’s property ; and endeavor to collect the money by suit at law-

It is admitted, that the plaintiff below was bound to sue Stroud, or shew a legal excuse for omitting to do so. And it is contended that the death of Stroud intestate, and no administration granted, constitute a legal excuse.

The pleas state that Stroud left property enough, subject to the payment of his debts, and that the plaintiff below never took any legal measures to collect the money.

The guaranty supposes, that a resort to legal measures might become necessary; and the defendants below engage to pay costs on any suits legally commenced. My construction of the guaranty is, that Bullen was to take the trouble of the collection, and Taylor and Otis the responsibility.

It seems to be conceded by the declaration, that if Stroud had left executors, or administrators had been appointed, the plaintiff must hare sued them before he could resort to his guaranty.

But if there is property enough, the law points out sufficient remedies. The plaintiff was surely bound to pursue such legal remedies as he was entitled to, before he could prosecute the defendants. Suppose Stroud had not died, but had gone to some other place, without this state, and had left property sufficient to pay the debt; must not the holder of the note use the remedy applicable to such a state of facts ? The contract is not that Stroud shall remain, and be served with a capias in an action of assumpsit; but any suit legally commenced, was contemplated. If there was property, as is represented by the pleas, some suit orpro-ceeding might have been instituted. Here was a condition precedent; that condition was not confined to a prosecution of Stroud himself. Had it been so, then indeed the plaintiff would possibly have been excused, as that was rendered impossible by the act of God, the death of Stroud. Even this, however, may be doubted. In Moakley v. Riggs, (19 John. 69,) Spencer Ch. Justice, says, “though the act of God, or the act of the law which renders the performance of an act stipulated to be done, unlawful, may excuse a party from a strict compliance with his contract as matter of defence, it may well be doubted whether an engagement by one to perform an act on the previous performance of another act by the other, can be enforced without shewing the previous act done, or that its performance was dispensed with, or prevented by him who was to perform the subsequent act.” This is in accordance with the settled law in relation to conditions precedent. In Wood v. Worsley, (2 H. Bl. 574,) which was an action on a policy against fire, the condition was to produce a certificate of the minister and church wardens, of certain facts. The certificate was not procured ; though other evidence of the facts was ; and that the minister, &e. refused withoutcause, to give the certificate. The common pleas held this tantamount toa production of the certificate. But the judgment was reversed in the king’s bench, (7 T. R. 710;) tlia.t court holding the production of the certificate, a condition precedent, and that it was immaterial that the minister wrongfully refused. In Routledge v. Burrell, (1 H Bl. 258,) the court upon a similar point, said the matter was too clear to admit of a doubt. In Campbell v. French, (6 T. R. 200,) a bond was conditioned to pay certain bills of exchange, if returned from India, protested for non-payment. The bills were returned protested for non-accept-ünce; and the court held the obligors discharged, the condition not being performed, though it might have been. So here, a suit or suits, at law, might have been prosecuted, and the money collected, as is inferrible from the pleas. The plaintiff has not made any effort to collect the money; and, in my judgment, his suit on the guaranty was premature. The judgment of the common pleas must be reversed.

Judgment reversed.