Wheeler v. Bancroft

18 N.H. 537

Opinion

Gilchrist, J.

The contract on which this action is brought is as follows:

“In consideration of a conveyance, this day made to us by Samuel O. Wheeler, Samuel W« Wheeler, and William Wheeler, 3d, of a certain right of flowing their land in Sharon, we hereby promise to pay them the sum of $25 on the first day of January in each year.”

On the day of the date of that paper, whiéh was the 2d of January, 1837, the plaintiffs eonveyed to the defendants and their heirs, by deed, in consideration of the sum of $25, to he paid to them annually on the first day of January of each year, the right to flow a tract of land which the deed describes, situated in Sharon, &c., whenever the water may be convenient or necessary for the profitable improvement of the mills, to hold so long as they shall pay the sum of $25, on the first day of January, therefor; and upon their neglect or refusal for ten days to pay the sum due, the deed was by its terms to be “null and void,” otherwise in force.

The defendants say that the note and deed, having been made at the same time, and relating to the same subject, should be taken together, and construed as forming one contract, and that the effect of that contract is, that the plaintiffs released their claim for damages for flowing their land, so long as the defendants should pay them $25 a year, and that the defendants might elect to pay the money, and thus preserve the right acquired by the deed, or, by refusing to pay, forfeit the right; that by the forfeiture of the right of flowing, the consideration of the yearly payment of money would fail, and with tbe consideration the plaintiffs’ right of action for the money.

By the deed, the defendants derive the right to themselves and their heirs, to Sow the plaintiffs’ land for an indeterminate period. That is what the deed secures to them. But for the plaintiffs’ security the deed makes a provision, that upon the defendants’ default for ten days to make payment, the deed shall be void. If, therefore, the defendants should so fail to make the payments, the deed would be void, or rather voidable; that is, it would cease to give them the right or privilege to flow the plaintiffs’ land, at least until these parties, by accepting the money after the day, or by some sufficient measures for that purpose, waive the forfeiture.

Now if the deed were all the contract that existed between the parties, it is plain that the defendants would have had the power to put an end to it whenever they pleased to do so, by simply omitting to pay the money, and the contract would be substantially the same, which they insist on in their construction of the deed and note together. .

But it seems that the parties did not intend to make a contract which should bind one and leave the other free. They intended to make the contract mutual. The plaintiffs sold the right of flowing for all time, and the defendants, in payment, promised to pay twenty-five dollars a year during the period indicated in the note. It was for the purpose of rendering the contract mutual that the note was given. It is impossible to assign a different pui'pose.

If no note had been given, then the parties would have been bound only by the stipulations in the deed. These bound the plaintiffs only, and did not require the defendants to pay asxy thing longer than they chose to continue to flow the land, and to enjoy the protection of the grant. This was the state of things the parties sought to avoid, by placing in tbe plaintiffs’ hands the means of enforcing the yearly payments which formed the consideration for the grant. To say that the defendants are not bonnd to pay the note is somewhat like saying that an action cannot be maintained npon a note seenred by a mortgage, upon the ground that the mortgagor may suffer the land to be taken.

The ease bears an obvious analogy to the common case' of an agreement for the purchase of land., The vendor gives a bond to convey the land upon the payment of a sum of money at a day certain, and the purchaser gives his notes for the payment of the money. Without the notes the contract would bind the vendor only, and the purchaser would enjoy the election, whether to proceed by making the payments at the day, or, by declining to do so, throw up the transaction. But the notes make the contract mutual, and then, if the purchaser omit to pay, the vendor may enforce the contract by a suit upon the notes, and the defendant cannot say that, by failing to pay at the day, he has lost the benefit of the purchase, and the notes are, therefore, without consideration. The failure to pay at the day enabled the vendor to abandon the bargain, if he chose to do so; but he still had the right, which they ordinarily have to whom money is due at a day certain, to waive the lapse of time, and accept it after it is due. It would be difficult, upon the principle which the defendant seeks to apply to the construction of this contract, to frame a contract that should be mutually binding, and that would not be open to the defence here set up. The moment' one party fails to perform, he forfeits the right to exact the consideration from the other; hut that fact does not deprive the latter of the power of enforcing a compliance ; nor does it absolve Mm, having' enforced it, from rendering the equivalent that would have been due upon a prompt and seasonable compliance.

With respect to the arbitration and award, the speeifi-s claim in controversy in that case was not the same here litigated. It is nothing to the purpose that the arbitrators decided it upon principles, which, if adopted, would be decisive of the present action. The authority of the arbitrators did not extend beyond adjusting the specific claim before them. They were not authorized to settle principles of law and equity in the abstract for the regulation of claims that might not be made. We can look no further than the award. The reasons on which it was founded were such as the arbitrators supposed, no doubt, to be just, hut the parties to this suit are not bound by the opinions of the arbitrators on abstract doctrines of law or of equity.

There must he Judgment on the verdict.