Osborne v. Elliott

• Citation: 1 Cal. 337
• Court: United States State Supreme Court (California)
• Decision Date: 01 December 1850
• Parties: OSBORNE ET AL., v. ELLIOTT ET AL.

1 Cal. 337

OSBORNE ET AL., v. ELLIOTT ET AL.

Supreme Court of the State of California

December Term, 1850

December 1, 1850

APPEAL from the District Court of the District of San Francisco. The facts are sufficiently stated in the opinions given in the case.

Mr. Robertson, for Plaintiffs.

A. T. Wilson, for Defendants By the Court, BENNETT, J. The note on which this suit is brought, having been executed at the same time and concerning the same matter as the contract set up by the defendants, must be taken as forming a part of it, and the whole must be construed together. Viewed in this light, the defendants were required, by the terms of the contract, to pay the note; and the plaintiffs, on the payment of the note, to execute and give to the defendants a good and valid title to the ship. The promises were dependent promises, and the plaintiffs cannot maintain an action without showing performance or an offer to perform. (Topping v. Root, 5 Cow. 404; Johnson v. Wygant, 11 Wendell, 49; Slocum v. Dispard, 4 Wendell, 615; Lawrence v. Taylor, 5 Hill, 107.) The contract to transfer the ship was made by the plaintiffs in their individual capacity, and not by the owners through them as their agents. They should, therefore, before bringing suit, have tendered to the defendants a good and valid title to the ship from themselves as vendors. But the very bill of sale, which one of them executed in the name of both, shows upon its face, that R. B. Forbes, of Boston, Massachusetts, was the owner of the ship, and that the plaintiffs had no title; and the bill of sale is, at the same time, executed by them as principals and not as agents of Forbes. This instrument, even if it had been tendered to the defendants, would have been no offer to comply with the stipulation into which the plaintiffs had entered. Nor can it make any difference, if, as was alleged, the defendants understood, at the time when they executed the note, that the plaintiffs did not then own the ship. It might have been in contemplation, that the latter were thereafter to procure the title and thus put themselves in a position to convey, when the note should become due. Whether this be so or not, the rule of law is indisputable, that all conversations and intentions of the parties, before and at the time of making the contract, are contained in it; so that, to the written instrument alone must we look, for the purpose of collecting their meaning. It appears from that, that the plaintiffs, individually, and not as agents, bound themselves to convey. It is unnecessary to examine minutely the numerous points made on the argument, upon exceptions taken to the decisions of the Court below, inasmuch as the above view of the cases disposes of them all, and shows that, if the Court had charged in favor of the plaintiffs in all respects, and the jury had found a verdict accordingly, it ought to be set aside as wholly unsustained by evidence upon a material question. The passages cited by the plaintiff's counsel from Pothier do not apply. They relate to an executed sale; and there is in this respect no difference between the civil and the common law; but here the contract was executory. The transfer of the title to the ship was not to take place until a future day, and the possession of the defendants was not that of vendees. The offer by the defendants to pay the amount of the note, is not to be regarded as a tender or an admission of their existing liability, but rather as an offer to perform their stipulations in the contract upon the performance by the plaintiffs of their part. This, although we regard it as irrelevant in their plea, is but surplusage, which the Court below might have stricken out or disregarded. Judgment affirmed.

Ordered accordingly.

HASTINGS, Ch. J. (dissenting). By the terms of the contract the plaintiffs were not bound to make a good and valid title to the defendants of the ship Mariposa until payment of the note, for the collection of which this suit was instituted. The plaintiffs were then to make the transfer, so that the consideration is concurrent and the conditions mutual. The plaintiffs were not bound to aver performance or an offer to perform before their right of action accrued; yet before the commencement of the action, they offered to perform and offered to be responsible for any defect which might exist in their power to...