Courcier v. Graham

1 Ohio 330

• Court: Ohio Supreme Court
• Decided: December 15, 1824
• Status: Published

Opinion

Opinion of the court, by

Judge Hitchcock:

In the case of Kingston v. Preston, Doug. 690, 691, Lord Mansfield observes, “There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other for the injury he may have received, by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions dependent on each other, in which the performance of one depends on the .prior performance *of the other, and, therefore, till this prior condition be performed, the other party is not liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time, and in these, if one party was ready, and offered to perform his part, ¡and the other neglected or refused to perform his, he who was ready and offered, has fulfilled his engagement, and may maintain an action for the default of the other, though it- is not certain that either is- obliged to do the first act.”

Much difficulty arises at times in the construction of covenants, .and in ascertaining whether .they are dependent or independent; but the same rules must be adopted as in the construction of other instruments of writing. The intention of the parties is to govern, and that intention must be collected from the whole instrument taken together. The order of time in which the several acts are .to be performed, however much they may be transposed in the deed, will show the intent of the transaction. If, upon the whole, it shall appear to have been the intention of the parties to trust-each to the personal security of the other, the covenants must be considered as independent. So when the covenants in a deed are established, in one particular instance, to be independent, it seems to he settled that they must be so considered throughout, although in the deed there may be mutual acts to be performed at the same time, or although the plaintiff had covenanted to do certain acts, on his part, in the intermediate time, between the performance of the different acts to be done by the defendant. 2 Johns. 273, 387; 5 Johns. 78; 2 H. Bl. 389. So where mutual covenants go only to a part of the consideration, and a breach of that part may be-paid for in damages, it has boon determined that they are to be-regarded as independent. 7 Johns. 244, and cases there cited.

In declaring in covenant, the declaration must be varied according to the nature of the instrument declared on. If the liability of the defendant depends upon the performance of a prior covenant or condition on the part of the plaintiff, performance ora tender of performance must be averred, or the declaration will be bad on demurrer. If the covenant contains mutual conditions to be performed at the same time, the ^plaintiff must aver that be was ready and offered to perform on his part, but it is not-necessary that he should aver performance, or an actual tender of performance. 1 East, 203; 3 Bos. & Pul. 457; 5 Johns. 179.

There is, perhaps, more difficulty in determining to which class-of covenants the contract before the court belongs than seems to be apprehended by counsel. The agreement was made on the 27th of March, 1818, at which ti me, merchandise, estimated at the value of eleven thousand four hundred and eighteen dollars and thirty-two cents, was paid by the plaintiffs, Courcier and Ravises, to the defendant, Graham, and paid as expressed in the contract, on account of the purchase of the land. They covenanted to deliver the aforesaid amount of merchandise forthwith, and the evidence proves that it was forthwith delivered. In addition to this, they covenanted that they would, “from time to time, when thereunto required, within one year from the date hereof, deliver to him, the-said Thomas Graham, or to his agent, or order, any further quantity of merchandise, as he, the said Thomas Graham, or his agent, or order, may select, at a fair market price, to the amount of-dollars, further on account of the aforesaid tract of land.” The defendant, Graham, agreed on his part, that, if he approved of the price at which the land should be valued, he would, at the end of one year from the date of the agreement, convey, by good and sufficient deed of conveyance, etc., the same land to the plaintiffs, they securing to be delivered, on demand, to the said Graham, or his order, etc., goods suitable to the Cincinnati market, etc. But if Graham did not approve of the price at which the land should be valued, then, at the end of one year from the date of the agreement, he was to secure the payment for the goods which had then been received, and which should thereafter be received, etc., in four annual payments, with interest after one year. By the terms of this contract, the land was to be conveyed, and the purchase money secured at the same time, and had these been the only acts cpvenanted to be performed, the covenant would have been clearly within the description of those containing mutual conditions to be performed at the same time, and neither party could have sustained an action against the other without showing a readiness and offer to ^perform. The plaintiffs covenanted to deliver goods of the value of eleven thousand dollars and more forthwith. Had they refused to deliver these goods, might not the defendant have had his action against them for the breach of this covenant, and that, too, without waiting until the end of the year? They further covenanted to deliver other merchandise in addition, within the year; and had this merchandise been selected and demanded, what could have prevented the defendant from maintaining an action against the plaintiffs for a breach of this covenant, provided they had refused to deliver the merchandise thus selected and demanded. Graham, on his part, was bound to do nothing until the end of the year, except to agree in the appointment of three persons to value the land. He was neither bound to convey, nor to secure payment for the goods. Now if to this case we apply the principles which were settled in the case cited from 2 and 5 Johnson, it would appear to me to be at least doubtful whether these must not be considered as independent covenants.

Again — let' us compare the covenants in this case with those in the caso of Bennett v. The Executors of Pixley, 7 Johns. 249. In that case the declaration stated that the testator, on the 22d of February, 1802, by his writing obligatory, sealed, etc., promised and agreed with plaintiffs, in consideration of $400 to him paid, to convey to the plaintiff, on or before the 1st day of December then next, one certain lot of land, lying, etc., and if the said lot ■of land should be appraised over the sum of $400, etc., same was to be made up to the testator, and if it was appraised under $400, the sum which it fell short was to be deducted out of certain motes, etc. In the case before the court, Courcier and Ravises covenanted forthwith to deliver goods estimated.to be worth more than $11,000, which goods were actually delivered at the time of making the contract; within six months after that time the land was to be valued; at the end of the year it was to be conveyed; if the valuation exceeded the amount of goods received, the plaintiffs were to secure the difference, to be paid in goods on demand ; but if the valuation fell short of the amount of goods received, then payment was to be secured by the defendant.

*There appears to be a groat degree of similarity in the features of the two cases. In one, $400 was paid in land; in the other, more than $11,000 was to be paid, and actually was paid upon the execution of the contract. In both, the land was to bo valued and conveyed at a subsequent period, and in both, if the valuation exceeded the amount already paid, the vendee was to make up the difference, in the one case by payment, in the other by securing payment; and if the valuation fell short of the amount already paid, then the difference to be accounted for by the vendor. It may be said that in the ease cited there was no agreement that the amount beyond the $400 should be paid at the time the conveyance should be executed. But what say.the court? “Assuming that there was a covenant on the part of the plaintiff to pay for the amount of the appraisement beyond $400; yet it only went to a part of the consideration, and the rule is settled that where mutual covenants go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent. The covenants in such case are to be considered as independent.” “ The damages sustained would be very unequal if the covenant of the plaintiff was held to be a condition precedent. He, in the meantime, loses his $400, and the testator might not lose anything. The plaintiff had in part (at least) executed the bargain by paying the $400, and the testator ought not to keep that sum without conveying the land, because, that possibly there may be a surplus to receive, and be may sustain some damage by the plaintiff not tendering that surplus. This would be unjust. He is bound to convey, and he may then resort to his action if a surplus should be found to ■exist upon the appraisement.”

The principle decided, and the reasoning adopted, apply strongly to the case under consideration.

The mutual covenants go only to a part of the consideration. •More than $11,000 was actually paid, and additional payments were to be made or secured, provided the land should be valued • •at an amount greater than what was then paid. In this case it may be said that the damages .would be unequal if the covenant of the plaintiff was held to be a condition precedent. He would lose his $11,000, *and Graham might not lose anything. In this case the'plaintiff has in part (at least) executed the bargain -by the payment which he has made, and in this case had Graham, .at the end of the year conveyed the land, and had the plaintiffs refused to secure the payment of the surplus, he might have had his action to receive that surplus.

If the cases cited are law (and the principles by them decided appear to be consistent with reason, justice, and common sense), I should be led to the conclusion that the covenants in the case before the court must be regarded as independent. But as the decision of the court upon the motion for a nonsuit is not founded upon this idea, it is unnecessary to give a definite opinion upon the point. 'The defendant contends that the covenants are dependent, or, at least, that they contain mutual conditions to be performed at the ■same time. The plaintiffs in their declaration have thus treated them, and have alleged performance on their part, or a readiness and offer to perform. Upon the trial, these averments in the declaration were not proven, and if by the .pleadings they were properly put in issue, the motion for a nonsuit should have prevailed.

Whatever is admitted in pleading need not be proved, and whatever is not denied may be considered as admitted. In covenant greater strictness is required in pleading than in most other actions. If the defendant relies upon matter of excuse for the nonperformance of his covenant, he must plead it specially. If he would excuse himself on the ground that the plaintiff hath hot performed a condition precedent, this must be pleaded specially. 1 Chitty’s Pleading, 483. This form of pleading is adopted in the books, and I find no case where the plaintiff, for the purpose of supporting his action merely, has been compelled to prove the performance of a precedent condition, unless the fact of performance was in some shape denied by the plea. "If the defendant relies’ upon his own performance, it must be specially pleaded, and under this plea I presume it will not be contended that the plaintiff would be bound to prove the performance of a precedent condition. The performance of the defendant, and not of the plaintiff, is the thing in issue, and for the purpose of trying that issue the performance of the plaintiff is admitted.

*In the present case the plea is non est factum. "What is put in issue by this plea? Counsel for defendant say that this is a general issue plea, and that a plea of the. general issue puts the plaintiff upon proof of all the material averments in his declaration. This, as a general rule, is undoubtedly correct. But in some actions, it is said in the books, there is no general issue. And in some actions the general issue plea is not considered as a denial of all the allegations of the declaration. In replevin, for instance, the plea of non cepit puts in issue nothing but the taking of the property. Under that plea the plaintiff is not bound to prove any interest in the property taken. Yet this is a general issue plea; and what is denied in an action of debt or covenant by the plea of non est factum, except the sealing and delivery of the deed upon which the action is founded. Cbitty, in his treatise on Pleading, vol. 1, p. 116, says that this plea puts nothing in issue but the sealing of the deed; and Espinasse, in his Digest, 306, that the issue is only upon the existence or goodness of the deed. For this dictum he cites 2 Black. 1152. The doctrine laid down by Chitty and Espinasse is supported by this and other adjudged cases. Muscett v. Ballet, 2 Cro. 369; Bishop v. Brook, Com. Rep. 303; Gardner v. Gardner, 10 Johns. 47, are full in point, so that the counsel for the defendant must be mistaken in supposing that this is a denial of all the material averments in a declaration, for most declarations in covenant contain other averments than the single allegation of the sealing and delivery of the deed. But are not these ojúnions and decisions consistent with reason and common sense ? One principal object of pleading is that the parties may have notice of the grounds of complaint and defense upon which they severally rely. The plaintiff in his declaration alleges, among other things, that the deed declared on is the deed of the defendant. To this declaration the defendant pleads non est factum; in other words, he denies the existence or goodness of the deed. By this plea he apprises the plaintiffs that he shall contest the validity of the deed in some way; but does he apprise him of any other defense? Under this plea the defendant may show that the deed was void at common law ab initio; that it was delivered as an escrow, or that it became void Rafter it was made, and before the commencement of the suit, by erasure, interlineation, alteration, etc. Evidence of this description the plaintiff must expect to meet. But would proof that the plaintiff had not performed a precedent condition in the same deed by him to be performed, be evidence that the deed was not the deed of the defendant; or would it destroy its validity? Evidence of this description under a proper state of pleading might and would destroy the plaintiff’s right of action, but would not prove that the deed was void. This idea, with respect to the operation and effect of the plea of non est factum, seems to have been generally entertained by pleaders, and therefore, in many instances, we find this plea connected in the same case with a special plea that a plaintiff has not performed a condition precedent. If a plea of nonest factum put such performance in issue, such practice would not have been introduced. And it is because the operation of this plea is thus limited, and because there is no one plea that puts in issue every material allegation in a declaration in covenant, that some writers on the subject of pleading have said that in this action there is, properly speaking, no plea of the general issue.

In the case under consideration, the defendant having pleaded as before stated, the cause was submitted to the jury. The plaintiffs introduced in evidence the deed, the validity of which was not questioned. He introduced further evidence to prove the amount of damage sustained. The testimony, was competent, and having it before them, the jury could not have found that the deed was not the deed of the defendant, but must of necessity return a verdict for the plaintiffs upon the issue joined; and the court could not with propriety have directed a nonsuit.

Having disposed of the question upon the point reserved, I will now proceed to consider the motion for a new trial.

On the trial of the cause, the counsel for defendant insisted, that by a just construction of the contract, Cincinnati was the place where the same should have been performed. And as plaintiffs had neither averred in -their declaration, nor shown in proof, that they were ready, either by themselves or agents at Cincinnati, to perform or accept a performance from the defendant, therefore, they were not entitled *to recover, or, if entitled to-recover, could only recover nominal damages. The court, however, were of opinion, and so instructed the jury, that the plaintiffs, under the pleadings, were entitled to recover the full amount of damages sustained. It is said that in this opinion the court were mistaken. As to the rights of recovery, sufficient has already been said. If. the declaration was defective, this should have-been taken advantage of by demurrer, or (if the defect was not cured by verdict) by motion in arrest of judgment. By craving oyer, the deed itself might have been made a part of the record. The defendant having relied upon the plea of non est factum, and the issue being found against him, no sufficient reason can be assigned why the plaintiff should not recover the damages proven to have been sustained. These damages were the value of the merchandise delivered, estimated at eleven thousand four hundred and eighteen dollars and thirty-two cents. This amount was sought to be recovered, together with the interest, and to this they had a right.

An attempt has been made to assimilate this case to a case standing on default. The reason assigned for this similarity is, that the plea was not sworn to according to the statute. But in this case, as well as every other where a plea is filed, there was an issue to be tried. That issue must be found either for plaintiffs or defendant. In a case standing on default, the jury have nothing to do but to assess the damages.

That the defendant did not rely for his principal defense upon the plea filed,, we may well conclude, from the circumstance that several notices are attached to and connected with the plea. The-principal object of pleading non est factum seems to have been to lay the foundation for giving notice, and to save the trouble of special pleading with technical precision. These notices are, in substance, that the defendant will, on the trial, prove performance, tender of performance, readiness and offer to perform, etc., and also that the plaintiffs refused on demand to deliver the goods and merchandise which had been selected, and that the merchandise delivered was of less value than eleven thousand four hundred and eighteen dollars and thirty-two cents. In sui^port of the notice connected with his plea, the defendant gave in evidence the facts particularly set forth in the ^motion, and the court instructed the jury as therein stated. Was there anything incorrect in this opinion, or any mistake as to matter of law ?

The first position of the court was, that no continuance of possession for any time less than where the statute of limitations would operate to bar a recovery in ejectment, was sufficient to-warrant the presumption of a deed. The authorities cited by counsel show that continuance of possession for a less period of time, accompanied by other circumstances, might be sufficient to warrant this presumption. In Bealy v. Shaw and others, 6 East, 215, Lord Ellenborough says, “ I take it, that twenty years exclusive .enjoyment of the water in any particular manner, affords a conclusive presumption of right in the party so enjoying it, derived from grant or act of Parliament. But less than twenty years enjoyment may or may not afford such a presumption, according as it is attended with circumstances to support or rebut the right.” From this I infer, that possession alone would not be sufficient to warrant the presumption, unless continued for twenty years; and, if so, the court were correct. The possession under Dayton had continued for more than twenty years, and this possession was accompanied by circumstances which would justify the jury in presuming, and they probably did presume, a title in that individual. But suppose the expression used by the court upon this point was not sufficiently guarded, or even that thei'e was a mistake as to the law, could this circumstance have made any difference in the final decision of the case ? If it would not, to grant the motion for a new trial would be worse than useless.

The next position assumed by the court was, that if the title was found to have been in Dayton, then no title would be sufficient to satisfy the terms of the contract, except a complete connected paper title from Dayton to the defendant, Graham. By the terms of the contract, Graham covenants that he will “ by a good and sufficient deed of conveyance and assurance in the law, well and sufficiently, grant, convey, and assure the aforesaid tract of land, with the appurtenances, unto the said Andrew Courcier and Frederic Ravises, their heirs and assigns, in fee simple, clear of all incumbrance, the title to the same to be indisputable.”

*The evidence adduced and admitted by the court showed a paper title from Dayton to Riddle, and from Yanhorne to the defendant. What was there to prove title in Yanhorne? Possession, and nothing but possession, unless it be the fact that he was putin possession by Riddle. This fact hardly conduces to prove title, Graham, then, could trace his title back no further than to Yanhorne, whose only evidence of title consisted in a possession commenced in 1803, and which, at the time of the tender, had continued in himself and those claiming under him for about eleven years. Under these eircumstanees, had Graham conveyed the land to the plaintiffs, and had they accepted the conveyance, would it have vested in them.a “title to the same indisputable?” Most clearly it would not. Here was an important link wanting in the chain of title From the evidence before the jury, the fee was vested in Riddle. And had Riddle commenced his action of ejectment against Graham, the latter would have been without defense. Will it be said that Riddle would have been estopped by his deed attested by one witness ? It must be recollected that this deed was not in evidence. It had been excluded by the court, and there was nothing submitted to the jury to prove that the title had ever passed from Riddle. In this situation of the case, I can have no doubt that the court were correct in instructing the jury that there must be a complete connected paper title from Dayton to Graham, to satisfy the terms of the contract.

The deed from Riddle to Yanhorne was properly excluded. By the first section of the act providing for the execution and acknowledgment of deeds, passed February 14, 1805, it is provided that all deeds for the conveyance of lands, etc., “ shall be signed and sealed by the grantor, in the presence of two witnesses, who shall subscribe the said deed of conveyance, attesting the acknowledgment of the signing and sealing thereof,” etc. This law was in force at the time the deed from Riddle purports to have been executed. This deed was defective, inasmuch as it was attested but by one witness. The law was not complied with. It could convey at most only an equitable interest. The plaintiffs were to receive a legal estate, free from incumbrance, the title to which should be indisputable. This *deed did not convey such an estate; of course, it could not be received in evidence.

On the subject of damages, the jury wore instructed that the price fixed upon the merchandise in the covenant must be the governing principle, and that it was not competent for the defendant to contest the justness of the price. In this opinion it is insisted that the court mistook the law, and the case of Basten v. Butler, 7 East, 479, is relied on as an authority to show this mis» ■take. In that case the plaintiff declared as upon a quantum meruit, for work and labor done and materials found. There had been no previous contract as to the price to be given, and the claim rested solely upon the worth or value of the work. The court decided that it would be proper to permit the defendant to prove that the work was less valuable than claimed to be by the plaintiff; and they go so far as to intimate that when there has been a particular price agreed upon, for which work and labor shall be done, the defendant having given notice, may show that the materials arc bad and the work defectively done. But in cases of this description, the decisions have been variant, although the rule appears to •be finally settled, as stated by Lord Ellenborough in Farnsworth v. Garrard, 1 Campbell, 28: “ That if there has been no beneficial service, there shall be no pay; but if some benefit has been derived, though not to the extent expected, this shall go the amount ■of the plaintiff’s demand, leaving the defendant to his action for •the negligence. The claim shall be co-extensive with the benefit.”

The case of Basten v. Butler would, in some degree, compare with the case before the court were this a quantum valebant, and ■had there been no previous agreement as to the price of the goods. In this case, however, the goods were estimated at a specific price. This price was agreed upon by the parties. The defendant agrees to pay this price at a future period in land if he is satisfied with the valuation. The valuation is made, and he assents to it; but he fails to make the conveyance, and thus remains debtor for tho goods. No fraud was practiced; none was pretended. He agreed •to the price of the goods with a full knowledge of their character; and it is not competent for *him now to say that they were ■of less value. There must be judgment on the verdict.

Judges Pease and Sherman concurred. Judge Burnet, having been counsel with Graham,- did not sit in ■this cause.