Ball v. Clark

28 F. 179, 24 Blatchf. 81, 1886 U.S. App. LEXIS 2240

• Court: U.S. Circuit Court for the District of Northern New York
• Decided: July 29, 1886
• Status: Published

Opinion

Coxe, J.

For the purposes of this motion the fact found by the jury must be taken as established. • This is conceded. The sale by Nichols of defendant’s property amounted to a conversion. The •question briefly stated, then, is this: Can a party recover upon a contract which he himself has violated? To this question it would seem that a negative answer is alone possible. The plaintiff, however, argues that the contract in question is not an entirety; that it is capable of separation; that the condition which Nichols violated was not a condition precedent, but a condition subsequent, and that, therefore, the plaintiff is entitled to recover, subject to defendant’s right to recoup his damages. It is admitted that if the provision violated by Nichols is a condition precedent, the plaintiff cannot recover.

The action is not to recover the purchase price of the grain, but is based upon a contract, specifically stated in the complaint, by the terms of -which Nichols agreed “to purchase, hold, and carry the property for the defendant.” He covenanted to perform all of these •stipulations. Gan he recover by proving that he performed but one ? The defendant agreed to pay for losses made in pursuance of the agreement, not in violation thereof. As was stated by Judge Denio in Tipton v. Feitner, 20 N. Y. 423, 425: “If the parties have, in terms,- stipulated that the defendant’s performance shall be dependent or conditional upon something to be done by the plaintiff, the case is a plain one.” Here the parties stipulated that the property should be purchased and held by Nichols for the defendant, and sold for him on his account. When Nichols performed these conditions his right to recover any balance his due was perfect, but how he can succeed upon the theory that the action is maintainable upon proof •of the purchase alone it is not easy to perceive. If a party employs an'agent to purchase and hold property for a month, and the agent purchases as directed, but sells the next day at a sacrifice, he is hardly in position to call upon his employer to make good the loss. No controlling precedent has been produced. The precise question involved does not appear to have been passed upon by this court, or the supreme court. The authorities referred to in the plaintiff’s brief, and many others of this and other states, have, however, been examined with care. The law is by no means well settled. Many conflicting theories are advanced, and often the same result is reached by learned judges, though by a very different process of reasoning. Although it is freely conceded that the main proposition advanced by the plaintiff is fully sustained by a number of these authorities, I cannot doubt that the'defendant’s position is upheld by the strongest and most consistent arguments. I am constrained to hold, therefore, that the plaintiff’s assignor, having failed to perform the agreement upon which he has based his action, is not entitled to recover.

The motion is denied.