Brown v. Gammon , 14 Me. 276 ( 1837 )

After a continuance, the opinion of the Court was drawn up by

Weston C. J.

If we give a literal construction to the bond, upon which the plaintiff declares, the title which he was to receive, was a good and sufficient deed. When the demand was made upon the defendant, he said he had a deed ready, which was shown, but not delivered. He was under no obligation to deliver it, without a concurrent performance of the conditions, stipulated on the part of the plaintiff. If the good and sufficient deed from the defendant, was the title the plaintiff was to have, the defendant had not disabled himself from executing such a deed, and for any thing which appears, such was the deed he had ready; and a tender from the plaintiff, upon this construction, was not excused.

But if the defendant had no title to the land, we do not think that the plaintiff, upon a fair and just construction of the instrument was bound to receive a deed from him, with whatever formality executed, or by whatever covenants secured. The plaintiff had a right to claim a good title.' On the other hand, if the defendant, had -it in his power, to cause a good title to be made to the plaintiff, and had the owner there ready and willing to make a valid and effectual conveyance to him, we cannot but think, that this would have been such a substantial performance ondris part, as ought to relieve him from the payment of damages, whether they are to be regarded as liquidated, or such as might be fixed by the jury. The plaintiff would have received a good title, which is all he had a just right to require under the contract. If the defendant caused such a title to be conveyed, it is a performance to all substantial and valuable purposes.

The plaintiff now insists, that he is entitled to recover a thousand dollars of the defendant, because he neither performed, nor was able, as the title then stood, to perform. This, in our opinion, would not comport with the justice of the case. The defendant had, ready at hand, the power of substantial fulfilment on his part. And we are further of opinion, that upon the facts offered to be proved, a tender by the plaintiff was hot excused. If it had been made, for any thing which appears, the owner was as ready to convey to the defendant, as to the plaintiff, and the defendant might thereupon have conveyed to the plaintiff, if the latter had'insisted upon this circuitous mode, and would not have been satisfied with a direct conveyance from the owner. The defendant, having made his arrangements with him, had the means of fulfilment in his power, even literally, if such was the obligation of his contract. And as performance on both sides was to be concurrent, the authorities cited clearly show, that the plaintiff cannot maintain his action, without a tender on his part, unless it is expressly waived by the defendant, or excused by his disability. We sustain, therefore, the exceptions taken by the defendant, which renders it unnecessary to consider those of the plaintiff.

New trial granted.