Ragan v. Gaither

When, to a declaration the defendant pleads several pleas, one of which only is an issuable plea, the others concluding with a verification, and without requring a replication, he consents to a jury being sworn, this is a waiver" of the other pleas. G. sold R. a lot for $700 — agreed to make a pavement in front of the property, and to clear all incumbrances; and was to receive the $700 on giving a good and sufficient deed. The contract was dated 17th June 1836, and R. was to receive the rent from 1st July; but if the deed was not given by that day, G. was to receive the rent until he gave a good deed. Held, that-the payment of the purchase motley and conveyance of the property were" tobe acts of concurrent performance, and that a declaration upon the contract, alleging that the plaintiff was at all times ready to execute, and did execute and offer to deliver a good and sufficient deed before the action was instituted, was after verdict equivalent to an allegation of seizin in the plaintiff, the Vendor. On a motion in arrest of judgment, the verdict will bo supported by every fair legal intendment, and the court will assume, that every thing was proved of which it is necessary for the plaintiff to have offered proof, to establish the truth of the allegations contained in his declaration. Where evidence in relation to a claim for money was offered by both parties,, it is error in the court to instruct the jury, that upon the foregoing statement of facts, the plaintiff is entitled to recover the whole amount of his" ■ demand; the truth of the facts, offered in evidence should have been left to the jury. Where deeds constitute a material part of the plaintiff ’s ease, and are not inserted in the bill of exceptions, and the correctness of the county court’s-instruction depends upon the effect of such deeds, this court, in the absence of such documents, will not assume that the county court was warranted in giving a hypothetical direction in favor of the plaintiff. Where a vendor sold land clear of all incumbrances, and at the time of his-action brought fpr the purchase money, ho held but an equitable title, sub. jecl to an incumbrance, and the fee was in a third person, and the title remained in that condition until the time of trial, the plaintiff cannot recover. What length of time in neglecting to perform a contract is unreasonable, and would authorise its recision at the will of the party complaining of such neglect, is a matter of law, to be determined by the court. A prayer for an instruction to the jury ought not to be so framed as to submit a question of law to their determination, and the refusal to grant a prayer so framed, is not error.

Appeal from Washington County Court. This was an action of trespass upon the case, brought on the 14th February 1829, by the appellee against the appellant. The plaintiff declared as follows — “For that whereas heretofore, to wit, on the 17th June 1836, &c., the said plaintiff, at the special instance and request of the said defendant, bargained with and agreed to sell the said defendant, a certain house and lot on Potomac street in Hagerstown, adjoining the present residence of the said defendant, and the said parties reduced the said contract to writing, as follows, to wit: I hereby acknowledge that I have sold to Richard Ragan the half lot adjoining him, formerly belonging to Mr. Heifly, for seven hundred dollars, and that I am to make the pavement in front of said property, and to clear all incumbrances. The said Richard Ragan to receive the rent of said property from the first day of July, and I am to receive the seven hundred dollars, on my giving him a good and sufficient deed. If the deed is not given by the first of July, I am to receive the rent of said property until I give him a good deed. H. H. Gaither. Test, — Charles Mac Gill. June 17th 1836. I accept of the the above agreement. Richard Ragan. And the plaintiff in fact says, that after the said contract was thus reduced to writing, and signed by the parties in manner and form aforesaid, to wit, on the tenth day of July in the year aforesaid, at, &c., the plaintiff did make the pavement in front of the said property, to wit, at &c.; and although the said plaintiff hath always been willing and ready to clear said property of all incumbrances, and to give said defendant a good and sufficient deed for the same, if. the said defendant would pay to the plaintiff the purchase money thereof as aforesaid, and although’ the plaintiff, before the issuing of the original writ in this cause, had actually prepared and executed to the said, defendant, his heirs and assigns forever, a good and sufficient deed for the said property, and offered and proposed to the said defendant to deliver the deed to him, and to' clear the said property of all incumbrances, if the defendant would pay the said purchase money to the plaintiff as aforesaid; yet the said defendant did.then and there refuse to pay the sai.d purchase money, or any part thereof. And the plaintiff in fact says? that the defendant hath wholly disregarded his said contract, and hath always heretofore refused and neglected to perform the same, and doth still refuse, to wit, at, ,&c. 2nd Count. And whereas heretofore, to wit, on the said 17th June, in the year of our Lord 1836, at, &c., by a certain other instrument of writing, signed by the said Richard Ragan and the said Henry H. Gaither, bearing date the day and year aforesaid, the said plaintiff sold to the said .Ragan a certain other half lot of ground adjoining the property of the said Ragan, which formerly belonged to Mr. Heifly, for the sum of seven hundred dollars, to be paid by the, said Ragan to .the said Gaither therefor. And it was further agreed between the said parties., in and by the said instrument of writing,, that the said Gaither should make the pavement in front of the said property, and should clear the said property of all incumbrances. And it was further stipulated and agreed by and between the said parties, in and by said instrument of writing, that the said Gaither should receive from the said. Ragan the said sum of seven hundred dollars, upon his giving to the said Ragan a good and sufficient deed for the said property, to wit, on the day and year last aforesaid, at, &c. And the said (Gaither in fact says, that after the making of the said agreement, to wit, on the tenth day of October eighteen hundred, and thirty-six, at the county aforesaid, he did make the said pavement in front of the said property. And although the . said..plaintiff hath at all times, from the making the said agreement to the time of the issuing the original writ in this cause, been ready and willing to execute and deliver to the said Ragan a good and sufficient deed for the said property, according to this said agreement in that behalf, and to clear the said property of all incumbrances; and although the plaintiff before the impetration of the original writ in this cause, did prepare and execute a good and sufficient deed for the said property to the said Richard Ragan, his heirs and assigns forever, and did offer and propose to deliver the same to the said Richard Ragan, and to clear the said property of all incumbrances, if the said Ragan would pay to the said plaintiff the said sum of seven hundred dollars for the same, yet the said Ragan wholly refused to do so, and the said defendant did not, nor would pay to the plaintiff the said purchase money due for the same. And so the plaintiff saith that, &c., &c. The defendant pleaded, 1st. That he did not undertake or promise in manner and form as the said Gaither hath above thereof complained against him, and of this he puts himself upon the country. 2nd. That the said Gaither ought not to have or maintain his aforesaid action thereof against him, because he says, that the agreement of the said Gaither to clear saidproperty of all incumbrances, and give the said Ragan a good and sufficient deed therefor, were conditions to be performed by the said Gaither, precedent to the payment by the said Ragan of the said sum of seven hundred dollars, mentioned in the said contract, and the said Gaither did not perform the said conditions in manner and form according to said agreement, and this he the said Ragan is ready to verify. 3rd. That the said Gaither ought not to have or maintain his aforesaid action thereof against him, because he says, that for a long and unreasonable time after the said agreement was entered into, to wit, until the-day of November 1838, the said Gaither neglected to perform the said agreement on his part, and did not clear off incumbrances, and give the said Ragan a good and sufficient deed; whereupon the said Ragan, on the day and year aforesaid, at Washington county aforesaid, rescinded the said agreement, of which the said Gaither had notice, and this the said Ragan is ready to verify. Wherefore, &c. No replications appear to the second and third pleas. A jury was then empannelled and sworn, who found that the said Richard Ragan did undertake and promise, in manner and form as the said Henry H. Gaither above against him complains, and they assess the damages of the said Henry H. Gaither, by reason of the non-performance of the promise and assumption aforesaid, to the sum of seven hundred and fifty-seven dollars and twenty-five cents, current money. The defendant Raganj then moved in arrest of judgment, because the plaintiff had not shewn a sufficient ground of action in his declaration. He had not averred a performance of the contract on his part, nor has he averred a positive offer to perform, which the defendant refused, hindered or discharged him from doing. It is not stated that defendant refused to accept a deed, and it does not appear that he would not have accepted a deed, if one had been tendered; nor is it averred that plaintiff had paid off incumbrances, or that he offered to pay them,off, and defendant hindered or discharged him from his obligation to do so. Nor is there any other sufficient excuse averred in the non-performance of the conditions and stipulations on the part of the plaintiff to be performed. The county court overruled the motion in arrest, and rendered judgment upon the verdictforthe plaintiff. • First Exception. — The plaintiff to support the issue on his part joined, offered in evidence the agreement set forth in the declaration; and then proved, that Peter Ilejlichwas seized in fee of the half lot of ground and premises described in said agreement; that the said Heflich afterwards died, having previously made in due form of law his last will and testament! in which he appointed Daniel Carver and John H. Smith the executors thereof, with full power to sell said property mentioned in said agreement; that said executors took out letters testamentary on said will, and sold said property to Dr. William MacGill, who paid them all the purchase money except a balance of about $286; that after the sale of said property to said MacGill, the said Smith became a lunatic; that Mac-Gill sold his said right to the said property to the plaintiff; that no deed was made by said executors to said MacGill, because said balance of the purchase money was not paid; that after the death of said MacGill, and before the sale by plaintiff to defendant, the following proceedings were had in Washington county court as a court of equity, to authorise the said Carver, as the sole acting executor, to convey said property specified in said agreement; andón the23rd November 1837, a decree was obtained accordingly. The plaintiff further proved by the said Daniel Carver, a competent witness, that on the 9th day of November 1838, he executed and acknowledged the following deed. (Here follows a deed from Carver to the plaintiff.) The plaintiff further proved, that on the 16th day of November 1838, he executed and acknowledged the following deed. (Here follows a deed from Gaither to the defendant.) The plaintiff further proved by Daniel Carver, that on the said 16th day of November 1838, or in a few days thereafter, the plaintiff called on him to go with him the plaintiff to the defendant, for the purpose on the part of the plaintiff, of tendering to the defendant the conveyance of the title to said property; that they did call on the defendant, and the plaintiff then offered to deliver to him the said deed, and the said Carver to deliver to the plaintiff the said deed from him to the plaintiff, so as to convey the title to the defendant, if the defendant would pay to him on such delivery of said deeds, the amount of the purchase money mentioned in said agreement; that the defendant made no objection to the title of said property, but asked the said Carver if he the said Carver would take his, the defendant’s note to him the said Carver, for the said balance of the said purchase money due to said Carver as executor as aforesaid, to which proposition the said Carver agreed. That the defendant further said, that after paying the amount to said Carver, and deducting the amount of an account due him from plaintiff, there would be about $300 balance due to plaintiff, which balance of the purchase money he would pay to said Carver and the plaintiff, provided the plaintiff would put the fence around the said property in the same condition it was at the date of said contract, but that the plaintiff refused so to do. The plaintiff further proved by Richard Wise, a competent witness, that some time before the date of said deeds, he was employed by the plaintiff to make the pavement in front of said property; that he made the same, and was paid therefor by the plaintiff, and that at the time he was making the same, the defendant was several times present and gave directions in relation to the making of the same, and was satisfied therewith. The defendant then on his part proved by the said Carver, the said witness of the plaintiff, that the plaintiff has not and never had a deed or legal title to the premises mentioned in said agreement; that after the said decree was rendered, but before the said deeds were offered, about $266 being due and unpaid, and the-plaintiff refusing to pay said balance, alleging that nothing was due, the witness had refused to make him a deed, and that when said deeds were offered by the'plaintiff and witness to the defendant, he, the defendant, did not look at or say any -thing about the deeds, but he agreed to take the-property, provided the ¡plaintiff would place -the fence around it in the same condition it was in when said agreement was made, and offered to leave it to two men to be selected by the plaintiff, whether he the defendant should take the property in its then condition, or the plaintiff should place it in the condition it was in at the date of the agreement; and the plaintiff refusing to do so, they parted, the defendant refusing to accept the deed. That though the witness executed and acknowledged the aforesaid deed to plaintiff, it was never delivered; that he had no knowledge that the defendant has'ever had possession of the property, or any part of it; that after the contract had been made, and before a deed was offered, the fences had decayed very much, and the property was otherwise delapidated, and that the enclosure had been very indifferent for years before the contract; that the legal title to the said property is still in him the said Carver, as executor as aforesaid, and the plaintiff has never paid the $266 due on said property. Whereupon the defendant prayed the court to instruct the jury, that if they believe from the testimony, the title in the property never was conveyed to defendant, and the defendant never had possession of the same, but the title and possession remained in the same situation they were in at the date of the contract, thes plaintiff is only entitled to recover the depreciation of the value; which direction the court refused to give, but were of the opinion, and so instructed the jury, that upon the aforegoing statement of facts, the plaintiff is entitled to recover the whole amount of the purchase money; to which instruction of the court (T. Buchanan, A. J.,) to the jury, the defendant excepted. Second Exception. — In addition to the testimony stated in the aforegoing bill of exceptions, the defendant offered to prove hy Charles Mac Gill, a competent witness, that it was understood by the parties at the time of making their contract, that the said deed should be given by the plaintiff within the year for which the property had been rented; which testimony the court rejected as illegal and incompetent. The defendant excepted. Third Exception.. — In addition to the testimony slated in the aforegoing bill of exceptions, (all of which is made a part of this the defendant’s third bill of exceptions,) the defendant proved by Daniel Carver, the aforesaid witness, that for one or two years after the said contract was entered into by the plaintiff and defendant, the defendant was anxious to obtain the title for the said property, and often talked to him upon the subject, and requested him to speak to the plaintiff and prevail.on plaintiff to pay the sum due by him to witness on said property, in order that he plaintiff might obtain a title which he could convey to defendant in performance of the contract; that during part of this time when defendant was urging a performance of the contract, a title could have been conveyed by witness; that defendant requested the said Carver to tell the plaintiff that he wished the contract performed, which witness accordingly did, but that plaintiff during all this time refused to pay the money due by him on said property, and therefore witness would not make him a deed; and the said Carver further proved, that for a considerable time before plaintiff went to defendant with a deed, he had heard nothing from defendant in relation to his contract with plaintiff, but he thinks plaintiff told him defendant had refused to accept the property, but he has no positive recollection on the subject. Whereupon the defendant.by his counsel prayed the court to instruct the jury, that'if they believe from the testimony the plaintiff had neglected to perform or offer to perform his contract for an unreasonable time, the defendant had a right to rescind his contract; and if they believe that the defendant had rescinded the contract, or the plaintiff on the request of defendant refused to perform his contract, the offer of the deed could not revive it, and they must find for the defendant; which instruction the court refused to give, but were of opinion, and so directed the jury, that the agreement of the defendant to take the property at the price stated in the agreement, if the plaintiff would put it in the state it was in at the date of the contract, was an acknowledgment by the defendant that the contract was still subsisting, and the plaintiff is entitled to a verdict for the purchase money. To which direction of the court to the jury the defendant excepted.