Bonner v. Herrick

Mr. Justice Merour

delivered the opinion of the court, January 3d 1882.

This action of ejectment was to enforce specific performance of contract. It is based on an agreement between the parties for an exchange of properties, in which the plaintiff was to take the farm of the defendant, and the latter the hotel property of the plaintiff; and the defendant was to pay the sum of $1,200, as the agreed difference in value between the properties. Possession was taken by each party of the property he was entitled to have under the contract. Afterwards, the defendant, alleging fraud in obtaining the contract from him, and also the inability of the plaintiff to give him, a title according to the agreement, claimed a right to rescind the same, .and took possession of the farm. To recover possession the plaintiff brought this suit.

The defendant gave evidence tending to prove that he was induced to enter into the contract through representations of the plaintiff as to the value of the hotel and the receipts thereof, the size of the lot, and the amount of liens on the property, and that the representations were false, fraudulent and deceitful. The alleged fraudulent representations of the value, receipts and condition of the hotel and size of the lot were controverted. The conflicting evidence was fairly submitted to the jury, and they wore correctly instructed as to the law applicable thereto. The evidence was, that the plaintiff represented the only lien on the property to be one of about $700 in favor of Mrs. Bishop; yet, the unquestioned evidence shows the liens thereon, in fact, were about $10,000. They were never removed by the plaintiff, so as to enable him to make “ a good and sufficient deed ” for the property, as he had agreed. He contends the defendant agreed to pay the Bishop judgment as part of the §1,200, or, if he did not so agree, he might have done it, and the same operated as a payment on the §1,200; and further, that he tendered to the defendant a conditional release of the lien of the other judgments. In answer to these contentions it may be said, the payment of the Bishop judgment would not protect the defendant, nor give him a good title to the hotel property. It would remain incumbered to the amount of §9,000. He, therefore, was not required to pay the Bishop judgment, nor would he have been safe in so doing while the larger liens remained. After waiting ten months, and the liens not being removed, the defendant elected to rescind the contract, moved out of the hotel, and out on to his farm. Some five months thereafter, and on the day before the hotel was tobe sold on the Bishop judgment, the plaintiff did tender a conditional release of the líen of the other judgments. The release was too late in time, and insufficient in form. The defendant, after giving the plaintiff ample time to remove the liens, had not only elected to rescind, but had given up possession of the hotel property, and it was just on the eve of being sold by the sheriff. The paper tendered was not an absolute release of liens by the other judgment creditors. It was conditional on the defendant complying with his contract. This was a condition precedent which the plaintiff had no right to require. The obligation rested on him to first put himself in condition to fulfill his part of the agreement before he could require the defendant to perform the other part. Nothing less than an absolute and unconditional release of the other liens would fully protect the defendant. He was not obliged to accept the proposition of third parties and a contingent risk of litigation with them. No sufficient release of the liens was executed. The court correctly held, if these liens of record were largely in excess of the value of the real estate of the plaintiff, and so remained when suit was brought, the plaintiff was not in condition to enforce specific performance of the contract.

It is not error for the court to comment on the evidence, nor to express an opinion on the weight thereof, if the facts are left to the jury. In calling their attention to the evidence affecting the credibility of the defendant the court commented on it with some freedom; yet, it was careful to say to them that it was all for their consideration.

¥e deem it unnecessary to discuss all the specifications in detail. We discover no error calling for reversal in any of them. The charge, as a whole, was a clear and correct presentation of the case.

Judgment affirmed.