Supreme Court of North Carolina, 1859

Hardy v. . McKesson

Supreme Court of North Carolina · Decided August 5, 1859 · Pearson

51 N.C. 554

Counsel

Merriman , for the plaintiff. If the covenants are mutual and dependent, the plaintiff cannot recover in this suit. But the covenants are not dependent. The payment of the purchase money is a condition precedent to the execution of the deed of conveyance which the plaintiff stipulates to make, whenever the purchase money should be paid. It becomes necessary, therefore, to construe the covenant set out in the pleadings, and the plaintiff insisted that the rule of construction which governs the case, is settled upon principle and precedent. The rule is, that if a day be appointed for the payment of money or part of it, or for doing any other act, and the day is to happen, or may happen before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not not doing such other act before performance; for it appears that the party relied on his remedy, and did not intend to make the performance a condition precedent. See Rob. Prac. 60 — 61; Leigh's Nisi Prius 688, and authorities there cited. Apply this rule to our case: Here the defendant stipulates to pay on the 1st of May, 1858, at all events , and the fixing of the day, is a key to the intention of both plaintiff and defendant. The case of Pordage v. Cole , 1 Tann. 320, is in point. There the defendant purchased the lands, c., of plaintiff, paid five pounds as an earnest at the time of the agreement, and stipulated to pay the purchase money before midsummer , 1668: It was held that the payment of the money was a condition precedent, and that the plaintiff might maintain a suit for the purchase money without making or tendering a deed of conveyance. To this effect, is the case of Northrop v. Northrop , 6 Con. 296; Robb v. Montgomery , 20 Johns. 15; Weaver v ., 1 Denio. 59.J. W. Woodfin , for the defendant.

Opinion of the Court

Pearson, C. J.

This case presents the question: can the plaintiff recover without averring a readiness on his part, to execute title ? This depends upon the construction of the covenant; in regard to which, vre entertain an opinion differing from that of his Honor. Where the covenants are dependent, and the acts are to be done concurrently, readiness on the part of the plaintiff must be averred in the declaration. If the covenants are independent, such averment need not be made.. This rule of law is admitted, and the only difficulty grows out of its application.

In our case, the covenant bound the defendant to pay the sum of $13,000, on or before the first day of May, 1858, *557 and the plaintiff to make a good title “ whenever” the money is paid. Row, it seems to us, that, according to the proper construction of this instrument, the defendant had a right to expect that “whenever,” that is, “at any time when” he paid the money, the plaintiff, as a concurrent act, would execute title. Such is the literal meaning of the word “whenever,” and the legal effect of the instrument is this: McKesson is not obliged to pay the money before the first day of May, although he may do so sooner, if he chooses, and call for a title. Hardy cannot require payment until that day; but on, or after, that time, it may be enforced, provided he executes a good title, or is ready and able to do so, “whenever” the money is paid ; and the reason for fixing a day, in respect to the time of payment, was, to give McKesson an opportunity to raise the funds, it being assumed that Hardy would be ready and willing at all times to execute title whenever payment was made.

This construction made, according to the literal meaning of the terms used, is confirmed bj' a consideration of the nature of the transaction : — •

The purpose for which Hardy retained the title was, simply, to secure the payment of the purchase-money. When that was done, there was no longer any reason for holding it, and the intention was that it should be passed, upon, and as, a concurrent act with the payment of the money. It would have been unreasonable to require McKesson to pay $13,000 without getting a title, and a construction which assumes that, he intended to bind himself to do so, and rely upon an action against Hardy to recover damages for a breach of covenant, departs from the ordinary course of things, and shocks our common sense! Had this been the intention, McKesson would have executed a plain note of hand for the money, and taken a penal bond for the title.

It is, as a general rule, most consistent with justice, that the acts should be performed concurrently, so as to dispose of the whole matter at the same time. Hence, Courts of Law incline to the construction by which covenants are made de *558 pendent, unless a contrary intention is expressed, as "When the price is to be paid at a specified time, and the title is to be made at another; see Clayton v. Blake, 4 Ired. Rep. 497, where the subject is discussed; and a Court of Equity will never decree a specific performance by the payment of the purchase money, without requiring the execution of a good title as a concurring act. Judgment reversed, and judgment of nonsuit.

PjsR Oubiam, Judgment reversed.

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