Kiah B. Sewall & al. vs. John Wilkins, 14 Me. 168

The case was continued, nisi, and the opinion of the Court prepared by Weston C. J. The law is well settled, that whether the acts to be performed by the parties respectively, in a covenant or agreement, are to be regarded as mutual, dependent, concurrent, or otherwise, is to be determined by their intention, apparent from the written evidence of what has been agreed, in connection with the subject matter, to which it is to be applied. The plaintiffs gave to the defendant their negotiable promissory notes, payable at the Suffolk Bank, absolutely, and without any condition whatever.

This was the only evidence of the agreement of the plaintiffs, received by the defendant. It sufficiently appears, that the payment of these notes, was not made by the parties to depend upon performance on the part of the defendant, concurrently or otherwise ; but that this was to be done subsequently in the order of time. And this is deducible as well from the notes, as from a just construction of the condition of the bond. The conveyance was to be made, upon payment of all the notes. These were payable in one, two and three years.

Payment could not be enforced at an earlier day ; although the plaintiffs reserved to themselves the option to pay them, at any prior period. But this stipulation, depending on their will, does not impair the fair inference, that it must have been understood, that payment of at least two of the notes was to precede the deed. Upon payment of the notes, the plaintiffs became entitled to a conveyance from the defendant, upon reasonable demand. They were to be paid at one place, and the domicil of the defendant, upon whom the demand was to be made, was at another, at the distance of more than two hundred miles.

Without therefore adverting at this time to what is to be understood by a reasonable demand, we are satisfied, that by the original agreement, actual payment could alone impose the duty of performance on the part of the defendant. But it is contended, that the condition of the bond has been modified by the parties, and that the force and effect of the evidence upon this point, being in writing, is to be determined by the Court, as a question of law.

Thomas, for himself and the other plaintiff, by his letter to the defendant, of the eleventh of March, 1836, desires to know, whether the defendant will be prepared to give “ a good and sufficient deed,” by the first of April then next, advising him, that they should be ready to fulfil the obligation on their part, at that time. The defendant, in his reply, on the thirteenth of March, states, that he is prepared at any time to give “ a good and sufficient deed,” according to the terms of the bond, when they comply with the conditions on their part.

And- he requests, that they would inform him by return of mail, whether it is their wish to complete the business at his residence at Bangor, or whether they would prefer that the notes and deed should be sent to Boston. Thereupon the plaintiff, Thomas, rejoins, on the fifteenth of March, that being disappointed in some arrangements, he did not know that he should be able to do as he wished, when he last wrote, but that in the course of a few days one of them would be at Bangor, and attend to the business; but he thought the notes had better remain there.

We cannot extract from this correspondence any definite agreement, changing the condition of the bond. The notice, that they should be ready to pay positively by the first of April, was withdrawn. They had been disappointed, and they did not know that they should be able to pay. One of them would attend to the business in a few days at Bangor. This could not be taken as an intimation, that the defendant was then to receive payment. He was given to understand, that this was rendered improbable, by their disappointment.

The defendant expressed his willingness to receive payment at Bangor ; but he required to be informed by return of mail, whether they would complete the business there. Their answer was vague, indefinite, uncertain, but finally left the business to be arranged at an interview, which one of them proposed to have with him at Bangor. The parties came to no agreement in these letters; but the defendant manifested a spirit of accommodation, little merited by the course of proceedings, which the plaintiffs then or soon after meditated.

What took place at Bangor, on the twenty-ninth of March, is detailed in the deposition of Albert W. Paine. The plaintiffs did not then agree to what the defendant proposed and desired. He was willing to receive the money there ; but they would not pay it, except upon a condition, with which they knew he had it not in his power to comply.

He declared to them, that the deed he proffered, which was a deed of warranty, with the usual covenants, was in his judgment a compliance with what the bond required ; and there is. reason to believe, that the execution of such a deed was all he contemplated in his letter to the plaintiffs. The land, which the condition of the bond recites to have been, on the day of its date conveyed to him by Mazen Mitchell, he was to convey to fire plaintiffs or their assigns.

Mitchell’s deed did not convey the land to him, the title being then in Massachusetts ; nor would his deed, if it had been executed, have conveyed it to the plaintiffs. We do not intend therefore to intimate, that such a deed would have been a compliance with the condition of the bond ; although such may have been very honestly the impression of the defendant.

As soon, therefore, as the parties understood each other, the defendant most certainly did not agree on the twenty-ninth of March, to receive the money and to fulfil on his part the conditions of the bond, in the sense in which they were construed by the plaintiffs; nor did he then admit, that they had made a reasonable demand on him to do so. We have seen, that the previous correspondence resulted in no agreement, to waive or change the conditions of the bond.

And upon a just construction of that instrument, and of the notes therein referred to, the plaintiffs were to pay absolutely, upon which they were entitled to make a reasonable demand upon the defendant, to convey to them the land described therein, by a good and sufficient deed. This not having been done, it has not been made to appear, that they have established any right to demand performance, on the part of the defendant. But if an offer to pay tire money was equivalent to actual payment, we are of opinion, that a reasonable demand had not been made upon the defendant, when the action was commenced.

The plaintiffs knew how the title stood, and prior to the execution of the bond, had expressed themselves satisfied with it. They knew that Massachusetts had extended a credit to the purchasers of land for the last payment, until the fall of 1838 ; although they had the option to pay earlier. And they knew, that they were not to receive a deed from that Commonwealth, until the whole purchase money had been paid. The defendant had a right to expect, that the plaintiffs would have availed themselves of the whole period of credit given to them. He could not have enforced payment earlier.

The correspondence, taken together, withdrew the notice, that the money would be paid by the first of April. He was under no obligation, therefore, to be prepared to fulfil on his part, on the twenty-ninth of March, when the money was offered. The plaintiffs knew that he had not acquired the title, and that lie would not acquire it, unless hastened by payment of the whole purchase money by them. If he obtained and conveyed the title, as soon as might be, after ho was thus hastened by actual payment by the plaintiffs, or an offer to pay, if that was equivalent, it was all that could be fairly required of him.

It is a perversion of the just import of language to contend, that a demand is reasonable, which denies to the party, upon whom it is made, the time necessary to do what is required, when he is in no fault for not being prepared before. The demand, to have been reasonable, considering the subject matter, and the known state of the title, should have allowed to the defendant a suitable time to do that which he had stipulated to do only upon reasonable demand. The plaintiffs neither gave nor proposed any time for this purpose ; but wdthin ten days brought their action.

Without finding it necessary to determine what would have been a reasonable time, we are very clear, having regard to the distance from Bangor to the office of the Land Agent of Massachusetts, the nature of the business to be accomplished, and the fact that other persons were interested in distinct portions of the purchase, that the defendant was entitled to a longer period than ten days ; more especially, when he and others concerned, from the term of credit given, had previously every reason to believe, that the necessary conveyances would be delayed for years. Judgment on the verdict.