Osborne et al. vs. Elliott et al., 1 Cal. 337

By the Court, Bennett, J. The note on which this suit is brought, having been executed at the same time and concerning the same matter as the contract set up by the defendants, must be. taken as forming a part of it, and the whole must be construed together. Yiewed in this light, the defendants were required, by the terms of the contract, to pay the note; and the plaintiffs, on the payment of the note, to execute and give to the defendants a good and valid title to the ship.

The promises were dependent promises, and the plaintiffs cannot maintain an action without showing performance or an offer to perform. (Topping v. Root, 5 Cow. 404; Johnson v. Wygant, 11 Wendell, 49; Slocum v. Dispard, 4 Wendell, 615; Lawrence v. Taylor, 5 Hill, 107.) The contract to transfer the ship was made by the plaintiffs in their individual capacity, and not by the owners through them as their agents. They should, therefore, before bringing suit, have tendered to the defendants a good and valid title to the ship from themselves as vendors.

But the very bill of sale, which one of them executed in the name of both, shows upon its face, that 11. B. Forbes of Boston, Massachusetts, was the owner of the slap, and that the plaintiffs had no title; and the bill of sale is, at the same time, executed by them as principals and not as agents of Forbes. This instrument, even if it had been tendered to the defendants, would have been no offer to comply with the stipulation into which the plaintiffs had entered.

Mor can it make any difference, if, as was alleged, the defendants understood, at the time when they executed the note, that the plaintiffs did not then own the ship. It might have been in contemplation, that the latter were thereafter to procure the title and thus put themselves in a position to convey, when the note should become due. Whether this be so or not, the rule of law is indisputable, that all conversations and intentions of the parties, before and at the time of making the contract, are contained in it; so that, to the written instrument alone must we look, for the purpose of collecting their meaning.

It appears from that, that the plaintiffs, individually, and not as agents, bound themselves to convey. It is unnecessary to examine minutely the numerous points made on the argument, upon exceptions taken to the decisions of the court below, inasmuch as the above view of the ease disposes of them all, and shows that, if the court had charged in favor of the plaintiffs in all respects, and the jury had found a verdict accordingly, it ought to be set aside as wholly unsustained by evidence upon a material question. The passages cited by the plaintiffs’ counsel from Pothier do not apply.

They relate to an executed sale; and there is in this respect no difference between the civil and the common law: but here the contract was executory. The transfer of the title to the ship was not to take place until a future day, and the possession of the defendants was not that of vendees. The offer by the defendants to pay the amount of the note, is not to be regarded as a tender or an admission of their existing liability, but rather as an offer to perform their stipulations in the contract upon the performance by the plaintiffs of their part.

This, although we regard it as irrelevant in their plea, is but surplusage, which the court below might have stricken out or disregarded. Judgment affirmed. Ordered accordingly.