Eames v. Carlisle

4 N.H. 201

Opinion

Richardson, C. J.

The question to be decided in this case is, does the replication show a breach of the condition of the bond ?

On the 17th April, 1823, these plaintiffs on the one side, and Bellows and Carlisle on the other, agreed to submit to referees certain claims of the plaintiff against -Bellows and Carlisle, and the agreement contained a stipulation that the amount of the award should be paid in nine months from that date, and that Bellows and Carlisle should pay the expenses of the reference.

On the 3d May, 1823, this bond was given by Bellows and Carlisle and W. Farrar, the defendants. The condition of the bond is, that Bellows and Carlisle shall perform and carry into effect, on their part, in good faith, the agreement of the 17th April, 1823, in ninety days from the said third day of May.

It is said on the part, of the plaintiff that if a breach of the agreement is shown, it necessarily follows that a breach of the condition of the bond is shown ; and if this be true it seems that a breach of the condition is shown. It is therefore necessary to examine the nature oí' the two contracts. In doing this it must be kept in mind that the parties to the two contracts are not the same, Farrar is a stranger to the agreement, and nothing appearing to the contrary, he must stand on the ground of a surety, and by a well settled rule of law is not as such to be bound beyond the scope of his engagemont.

The substance of the condition of the bond is, that Bellows and Carlisle shall perform the agreement on their part in ninety days. What then was to be done on their part ? The agreement was to refer the claims of the plaintiffs. It was certainly the business of the plaintiffs to call the referees together, exhibit to them their claims and procure an award. This was not a matter to be done by Bellows and Carlisle. All that was to be done on their part was to pay the expenses of the. reference and perform the award. Now the condition of the bpnd is not that that they shall perform the award, but that they shall perform the agreement, on their part, within ninety days ; and they contend that from the very nature of the stipulation, an award not made within the ninety days cannot be within the condition. And on this point we are of opinion with tlic defendants- As they stipulated with the plaintiffs that Bellows and Car-lisle should perform the contract, on their part, in ninety days, and as nothing could be done on their part, until the plaintiffs procured an award, an award procured by the plaintiffs within the time was a condition precedent necessarily implied in the nature oí' the transaction, a performance of which, on the part of the plaintiffs, must appear before any breach of the contract, on the part of the defendants can be shown.

It has been urged, that it is a part, of the condition necessarily implied in its terms, that Bellows and Car-lisle should procure an award. But even admitting this to be the natural import of the condition, it cannot avail the plaintiffs on these pleadings, because the negligence of Bellows and Carlisle, in this-respect, is not assigned as as a breach of the condition. And if the true import of the condition is that they should procure and perform an award within ninety days, the real breach of the condition has been in not procuring the award within ninety days, and the non performance of an award made after-wards is clearly not within the meaning of the condition. If the condition were, what the counsel of the plaintiffs contend it is, it would not be reasonable, with respect to the surety, to hold an award made after ninety days to be within it, because that would be giving a construction to the condition that would render the surety liable for years, instead of construing it according to the natural import; of its terms in such mariner that if broken at all it must be broken within ninety days.

We are therefore of opinion that the replication is, in law, insufficient, and that the defendants are entitled to judgment.

The plaintiffs had leave to amend.