Andrew Cnty. v. Craig

• Citation: 32 Mo. 528
• Parties: ANDREW COUNTY, Plaintiff in Error, v. OLIVER H. P. CRAIG et al., Defendants in Error.
• Decision Date: 31 July 1862
• Court: United States State Supreme Court of Missouri

32 Mo. 528

ANDREW COUNTY, Plaintiff in Error,

v.OLIVER H. P. CRAIG et al., Defendants in Error.

Supreme Court of Missouri.

July Term, 1862.

Error to Andrew Circuit Court.

Aikman Welch, attorney general, for appellant.

I. The court erred in refusing to give the third instruction asked for plaintiff, and also in giving the instruction which it did on its own motion. This instruction given by the court is erroneous in this--that it denies the plaintiff's right of recovery on the bond sued on; first, unless plaintiff had a title “before the maturity of the note;” and second, unless plaintiff had tendered a deed “before the institution of the suit.” Both of these propositions are erroneous. On the first proposition, see Johnson v. Purvis, 1 Hill, S. C., 208; Martin v. Bobo, 1 Spears, S. C., 26; Thomson v. Miles, 1 Esp. 183; 1 Sugd. on Vend.; Gregson v. Riddle, before Lord Thurlow, 1784, cited 7 Vesey, 267.

On the second proposition, see the above authorities and also Bailey v. Clay, 4 Rand., Va., 346; Serg. Wms.' note in Pordage v. Cole, 1 Sand. 320; Leftwitch v. Coleman, 3 How., Miss., 167; Rector v. Price, 6 Ala. 321; Lucas v. Clemens et al. 7 Mo. 367; Guest v. Homfray, 5 Vesey, 818, 823.

But the instruction is also erroneous in this--that it excludes from the jury all consideration of the question of a waiver by the respondents of any right to insist on plaintiff having a title by the maturity of the note, a right which respondents insist upon in their answer and the court in its instruction (but erroneously), when there was abundant evidence of such waiver then before the jury, and unexcluded; since, although the note matured July 6, 1858, yet the petition avers, and the respondents admit by not denying, a payment on said note by respondents on the 22d day of March, 1859, of $120.83, which is nearly one year after the maturity of the note, thus waiving any right to claim a forfeiture of the contract, at least up to the time of such payment, by reason of plaintiff's supposed failure to obtain title by the maturity of the note. (Langford v. Pitt, 2 P. Wms. 630; Coffin v. Cooper, 14 Vesey, 205; Seaton v. Steele, 7 Vesey, 265; The Dutch Church v. West, 7 Paige, 37; Brown v. Hoff, 5 Paige, 235; Winne v. Raymond, 6 Paige, 407; Cotten v. Ward, 3 Monr, 313; Jones v. Robbins, 29 Me. 351; Boehm v. Wood, 1 Jac. & Walk. 420; Levy v. Linde, 3 Meriv. 81; Hunter v. Daniel, 4 Hare, 420.)

II. The intention of the parties, as gathered from the entire transaction, is the first rule in the construction of contracts; other rules are subservient to this, and, when they contravene it, are to be disregarded. (Gray v. Clark, 11 Vt. 583; Kelly v. Mills, 8 Ham. 325; Patrick v. Grant, 2 Shep., Me., 233; Morey v. Homan, 10 Vt. 565; Hollingsworth v. Fry, 4 Dallas, 345.)

H. M. & A. H. Vories, for respondents.

There are three exceptions taken by the plaintiff in this case, and yet there is but one point involved necessary to be considered by this court, which is: Was it necessary for the plaintiff in this case to have tendered a deed to the defendants for the lands which formed the consideration of the bond upon which the suit was brought? It is insisted by the defendants that this was necessary, and the court below so instructed the jury. If this instruction was right, there is no pretence of an error in the case.

In order to a proper understanding of this case, the bond sued on and the certificates of purchase read in evidence must be construed as one instrument. When thus construed, it will be found that the purchase is a conditional purchase, the condition being that the defendants will pay the money upon the condition that the county obtain title to the land; otherwise, the bond is to be void.

The defendants contend that the true construction of this is, that the county should obtain the title before or at the time the bond becomes due; and although there is no express promise or covenant on the part of the county to convey to the defendants, yet in effect it is a promise to convey the title to the purchasers at the time that the money is to be paid. And hence the plaintiff, to recover, should allege in his petition and prove on the trial--

1. That she, at the time the bond became due, had procured a good and sufficient title to the lands.

2. That she had either conveyed or offered to convey the lands to defendants; in other words, that the contract of the defendants to pay the money, and the covenant or promise of plaintiff, were concurrent dependent promises or covenants. (For which, see Magaw v. Lathrop, 4 Watts & Serg. 316; Chit. on Cont., t. pp. 745, 747, 748 & 749, and notes and cases cited; Cunningham et al. v. Morrell, 10 Johns. 203; Freeland v. mitchell, 8 Mo. 487; Fletcher v. Cole, 23 Vt. 114; Syme v. Steamboat Indiana, 28 Mo. 335.)

DRYDEN, Judge, delivered the opinion of the court.

This is a suit for the debt and interest remaining unpaid on a bond given by the defendants for five thousand eight hundred and eighty-seven dollars and seventeen cents, payable at twelve months, to the County of Andrew, for the price of certain swamp lands sold to the defendants Craig and Abney by the sheriff, under an order of the County Court. At the time of the sale the sheriff executed to the purchasers certificates of purchase, by which he stipulated (without...