Opinion
[Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] [Syllabus Material] Rehearing Denied 12 Cal. 231 at 240.
Appeal from the Twelfth District, County of San Francisco.
COUNSEL:
I. The Court was requested to charge that, " assuming the facts which the evidence tended to prove, there was no delivery of the deed executed by the plaintiff to Samuel Bensley, the grantee."
This instruction was refused. The Court very properly told the jury that a grantor could not force a deed upon the grantee; that assent of the grantee was essential; and left it to the jury to find whether there had in fact been such assent, or not.
a. The plaintiff was entitled to the instruction requested; for there was no conflict in the evidence on the question of " assent," and the facts that it intended to prove showed that there had been no assent as a matter of law.
1. As there was no conflict in the testimony, the plaintiff could claim a judicial declaration as to the effect of the facts should the jury find them. Whitney v. Synde, 16 Vt. 580, 586; Van Hoesen v. Van Alstyne, 3 Wend. 75; Pleasant v. Pendleton, 6 Rand. 473; 2 U.S. D., p. 169, sec. 270; Swartwilder v. U.S. Bank, 1 J. J. Marsh. 38.
2. The declaration or charge requested was correct; for if the facts which the evidence tended to prove, really existed, they precluded all idea of privity on the part of the grantee with the deed. 2 Hilliard's Ab. 283. Nor can the effect of this refusal be evaded on the ground of the charge actually given; for that was clearly erroneous, inasmuch as it put the question of assent as an open question of fact to the jury, when there was no evidence tending to prove such assent. Birney v. Boardman, 3 Vt. 236.
II. The Court told the jury that by the terms of the contract it was necessary for the plaintiff to prove that he had given reasonable notice to Atwill that Lick had sued in ejectment for the land.
This was telling the jury in effect, that the giving of such reasonable notice was a condition precedent to the right of recovery.
This was erroneous; for the giving of the notice was not a condition precedent, but an independent covenant merely.
a. The inclination of the law is against conditions precedent; for a failure results in forfeiture, whereas a breach of covenant resultsin compensation merely.
b. The contract, in speaking of the liability of Atwill to refund the money, first adopts the language of conditions, as follows: " Provided" that Bensley shall vigilantly defend.
Such defense was very likely a condition precedent. But immediately thereafter the language is changed; and, in that part which relates to the notice it is said, " It is further agreed."
c. The context has to do with the question of construction, and it can hardly be contended that the payment of taxes, assessments, etc., that are grouped under the " agreement" to give the notice, are conditions precedent. Noscitur a Locies .
d. Again: the giving of the notice does not constitute the entire consideration of Atwill's undertaking to refund, nor any considerable part of it; therefore, on established principles, the giving of the notice should not be construed as a condition precedent.
1. It does not in fact constitute the whole consideration of Atwill's undertaking. The bulk of the consideration consists in the payment of the $ 6,000, and in Bensley's engagement to defend efficiently against any suit that might be brought for the possession; and ifsuch defense should be made in fact by Bensley, it would be a matter of no practical moment whether Atwill had notice of the pendency of the action, or not.
2. Assuming, then, that the fact is with us, that is--that the giving of the notice does not constitute the whole of the consideration of Atwill's undertaking--the contract is subjected to the rule of construction for which we contend. Boone v. Eyre, 1 H. Black. 273, note; Stavers v. Curling, 32 C. L. 153; Muldrow v. McClelland, 1 Littell, 1; Tomkins v. Elliott, 5 Wend. 496; 2 Smith's Leading Cases, 25; 2 Par. Contracts, 37.
Though in form the covenants may be dependent, yet to prevent injustice, they may be treated as independent. 2 Smith's L. C. 24.
Shafter, Park & Heydenfeldt, for Appellant.
George F. & W. H. Sharp, for Respondent.
I. The Court charged the jury that the deed from appellant to his brother, S. S. Bensley, " was not operative to pass the title, and that the lot in question had not been transferred; " which charge was more favorable to appellant than the law warrants.
The acts done by appellant, and by Brooks, with his authority, were a transfer in the sense of this clause of the agreement, and in violation of it.
In truth, the Court should have given the fifth request asked by respondent; as no dissent of S. S. Bensley was shown, it being for his benefit, it is presumed that he accepted the deed. The Lady Superior v. McNamara, 3 Barb. Chy. Rep. 378; Thompkins v. Wheeler, 16 Peters' Rep. 106, 119; Ingram v. Porter, 4 McCord Rep. 198.
After the deed was left for record with the County Recorder, he held it for S. S. Bensley, who alone was entitled to receive it. At least, the Recorder would have been justified in refusing to deliver it to appellant.
II. It was incumbent upon appellant to give notice of the suit of Lick against Bensley et al. to respondent, so that he might assist in the defense. The notice did not meet the requirements of the contract either in substance or time.
The respondent conveyed to appellant the lot by quitclaim, with full knowledge of the exact claim of Atwill to the lot. Hence the doctrine of caveat emptor applies. Gouverneur v. Elmendorff, 5 J. Ch. Rep. 84.
The return of the purchase money depended--1st. Upon appellant being dispossessed by legal and final process within three years. No return, if dispossessed after that time; so that the agreementwas in fact to insure a three years' possession.
2d. That appellant would " faithfully, diligently and watchfully resist and defend any claim or infringement that might be made upon said premises, either by law or against law; and also, that appellant notified respondent of any claim made, so as to enable respondent to assist in defense of the title."
3d. That appellant would not transfer the lot without the written consent of respondent.
The clause of the agreement requiring appellant to defend and resist " any claim," is introduced by apt words to make the defense of the claim a condition precedent. No particular words are required to make a condition precedent. It is to be gathered from the meaning of the parties, and it is apparent that the clause of the agreement in regard to notice is to be read with the clause as to the defense of any claim, and is wholly independent of any other. Atwill contracted expressly to have the right to furnish his aid, which might have been controlling in that suit, if allowed to use it effectively.
The Court below did not put the question to the jury as a condition precedent, nor did the jury find a verdict upon that ground. TheCourt simply made the giving of notice and the defense dependent.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., concurring.
OPINION
BALDWIN, Judge
On a re-hearing of this case, the Court, by Baldwin, J., and Terry, C. J., concurring, delivered the following opinion:
We have re-considered this case at the earnest instance of the appellant. We remain, after examining his argument, of the same opinion as before. The decision we have made must, of course, be regarded in connection with, and limited by, the precise facts of that case. The language of the agreement is very guarded. The evident intent of Atwill, in guaranteeing against an eviction within the period limited, was to guard against a collusive judgment. He agreed to pay back the purchase money on a carefully defined condition, viz.: On a judicial eviction within the time, and obtained after notice to him. If " common sense" is applied to the language he used, it amounts to this: " I will repay you $ 2,000 on your being evicted by judgment after notice to me." Does this mean that he will pay it without any eviction, on a mere showing of a paramount title? Does it mean, any more, any kind of judicial eviction--with or without notice? These questions answer themselves. What Atwill warranted was not the title; it was the possession; and he did not unconditionally warrant the possession, but only on a condition which he expressed. How, then, can he be held, except on his own terms, for a violation of his own contract made and qualified in his own way? Is it not plain, that a party suing for a breach of this covenant, must aver that the warrantee had been evicted after notice to warrantor, and warrantor had failed to pay the sum stipulated? The payment of the money is absolutely dependent upon these facts.
The petition is denied.