Stockton v. George

8 Miss. 172

• Court: Mississippi Supreme Court
• Decided: January 15, 1843
• Status: Published

Opinion

Mr. Justice Clayton

delivered the opinion of the court.

This was an action of debt, brought in the circuit court of Itawamba county, against the plaintiff in error, upon a bond given for ,the conveyance of title to a tract of land. The bond was in the usual form, with condition to be void “if Stockton should make title to the land when George should pay him the sum of four hundred dollars.” The defendant below craved oyer of the bond, which was granted, and he then filed several pleas, one only of which need here be noticed: that was, that he was ready and willing to make title according to the condition of the bond, whenever the purchase money should be paid. To this plea there was a demurrer, which was sustained by the'court, andthe partieswént to trial upon the other-pleas, which resulted in favor of the plaintiff. The case comes to this court by writ of error.

A bill of exceptions was taken upon the trial, by which it ap-, pears that the judge charged the jury “that the covenants in the writing obligatory sued on were independent, and that it was not necessary for the plaintiff to show payment or compliance on his part to enable him to recover.”

This charge, as well as the decision,of the court upon the demurrer to the defendant’s' plea, was erroneous. “In contracts of this kind the undertakings are always considered dependent, unless a contrary intention clearly appears. This is more just than to hold them to be independent, by which the one-or the other might often be compelled to part with his money or his property, without receiving the equivalent for which he stipulated; and it is the obvious inclination of courts to place this construction upon them.. Hence, in such cases, if either a vendor or vendee wish to-compel the other to fulfil his engagement, he must make'his own part of the agreement precedent, and cannot proceed against the other without an actual performance of the agreement on his part, or a tender and refusal. And an averment to that effect is always made in the declaration upon contracts containing dependent undertakings, and that averment must be supported by proof.” The law here laid down is extracted from the case of Bank of Columbia v. Hagner, 1 Peters, 465, and is undeniably correct. The same principle is to be found in Gardner v. King, 2 Iredell, 297, and in many other authorities.

In this case, the declaration avers that the plaintiff had paid the purchase money, and without such averment, as the covenants were dependent, it would'have been bad upon demurrer. It follows necessarily, that without proof in support of the. averment, recovery could not be legally had. There is no such evidence in the record, but evidence, on the contrary, that the defendant below refused to make conveyance until he should receive payment. In this refusal he was justified by his contract. In the case of Harris et al. v. Bolton, we have at this term affirmed the same principle in a suit in equity. (See ante, page 167.) We there say,, “that before he can recover, the complainant must put the other party in default by performing or offering to perform his part of the agreement.” When he has done this, if the other fails to comply, he is entitled to relief.

The judgment will‘be reversed and a new trial awarded.