Brinley v. Tibbets , 7 Me. 70 ( 1830 )

The opinion of the Court was delivered in Cumberland, at the adjournment of May term, in August following, by

Mellen C. J.

The note in suit is one of four given on the same day, viz. Oct. 28, 1824, for a certain lot of land, described in the receipt, given on the same day by Pitts, the agent of Brin-ley. In this receipt and contract no time is specified, within which the deed therein described was to be procured by said Pitts, though the note in suit was made payable in one year from its date. In the absence of such limitation the law requires that performance shall not be delayed beyond a reasonable time; and what is a reasonable time depends on circumstances: and on the facts of this ease, it is question of law. The deed in question had not been delivered when the action was commenced : and surely much less than two years was a reasonable time, within which the deed was to have been procured ; and, unless the defendant’s own conduct has taken away his defence of this action, we are clearly of opinion that it cannot be maintained. As the contract was made by Pitts, as agent of Brinley, who was well known to be an inhabitant of Massachusetts, we must give a construction to the contract signed by Pitts, so as to approach as near as we can to their understanding of it. It is not to be supposed that Pitts was to go to Massachusetts 'on purpose to obtain the deed ; nor, when obtained, that he was bound tó carry the deed to the defendant and deliver or tender it to ■him. He was to procure the deed from Brinley ; and if the deed -should not be procured by Pitts, the notes were to be returned to the defendant. The case finds that a deed, conforming to the terms •of the contract, was procured of the plaintiff, .though not so soon as •it should have been ; and when the agent of the defendant called •for the deed, and could not obtain it, the defendant might at once have resisted the payment of the notes, though Pitts declined to deliver them up — and have considered himself as completely absolved from his engagements. But though the defendant’s agent notified him of his fruitless endeavor to obtain the deed or the notes, still the defendant gave no evidence of any disposition to rescind the bargain and reclaim his notes. He continued in the" peaceable possession, of the premises under the contract, from the time it was made down to the 20th of March, 1826, when he sold and conveyed all his right or interest in the land for one hundred dollars to Lovejoy, in-* forming him that he was to have had his deed in the January previous, though for some reason he had not then got it. At the time of his purchase of Tibbets, Lovejoy gave him an obligation to take up the defendant’s notes before mehtioned, and give his own in lieu of them; it is true the exchange of notes was not made, but the fact is of importance to shew that the defendant considered the notes as in full force against him, and the bargain as unrescinded. It was in his power to waive all legal objections to the non-procurement of the deed in a reasonable time; and if he did so, he cannot now be permitted to urge it as a defence against the action. The deed is ready for him, and has been offered to him in court. — It is said that he sold only his improvements to Lovejoy, but as he held the possession until the sale of his interest to Lovejoy, under the contract of purchase made with Pitts, he was not entitled to the value of his improvements. This point has been distinctly settled in Massachusetts, and in this State. Knox v. Hook, 12 Mass. 329 ; Shaw v. Bradstreet, 13 Mass. 241; Propr's Ken. Pur. v. Kavanagh, 1 Greenl. 348. From the conduct of the defendant and Lovejoy, the most natural conclusion seems to be, that the subject of the transfer was die interest in the premises which the defendant had purchased of the plaintiff, or rather contracted for with Pitts, and for which he had given the notes; otherwise he would not have taken of Lovejoy an obligation to take up the notes ; as they were given for $305 60. On payment of the notes, the defendant can maintain an action for damages, if the plaintiff should refuse to deliver him a deed of the land according to the terms of the agreement ; but to avoid expense and circuity of action, judgment on default will not be entered, until the deed before mentioned shall have been placed on the files of this court, expressly for the use of she defendant.