Davis v. Jeffris

• Decision Date: 26 April 1894
• Parties: DAVIS et al., Plaintiff and appellant, v. DAVID B. JEFFRIS, Defendant and respondent.
• Court: South Dakota Supreme Court

5 S.D. 352, 58 N.W. 815 (1894)

DAVIS et al.,

Plaintiff and appellant,

v.DAVID B. JEFFRIS,

Defendant and respondent.

South Dakota Supreme Court

Appeal from Circuit Court, Beadle County, S.D.

Hon. E. G. Smith, Judge

Affirmed

A. B. Melville

Attorney for appellant.

F. Vollrath

Attorney for respondent.

Opinion filed April 26, 1894

CORSON, P. J.

This action was founded upon a contract entered into by the plaintiffs with thirteen subscribers, of which the defendant was one, to erect a creamery and cold-storage building at the city of Huron, and furnish all the material and labor, for the sum of $6,500, to be paid for on completion of the building. The cold-storage department was to be constructed under the McCray cold-storage and refrigerator patents. Each of the thirteen subscribers to the contract agreed to pay $500. There are a number of stipulations in the contract not necessary to be given, and we select such, only, as we deem material to a determination of the controversy, which are as follows:

“The cold storage department is 30x40 feet, and built and fitted up according to, and under, the McCray cold storage and refrigerator patents, the general plan of which is shown on plans. … And the ice department built as per shown on plans, and according to the McCray patents, and the entire building is to be covered with iron roofing. Said building has a capacity for storing 300 to 1,000 barrels. We also agree to furnish with said contract a patent deed from the McCray Refrigerator Company, of Kendallville, Indiana, conveying all the rights under said patents. …

We, the subscribers hereto, parties of the second part, agree to pay the amount set opposite our respective names for said creamery and cold storage when completed. …”

The complaint is in the usual form, and contains a copy of the contract. The answer is a general denial, and contains certain affirmative defenses not now necessary to be considered. The abstract contains the following statement:

“Plaintiffs failed to adduce any proof or evidence that they had furnished, or offered to furnish, defendant, or any of the subscribers to said contract, a patent deed from the McCray Refrigerator Company, of Kendallville, Indiana, provided for in the contract in suit, conveying all the rights under said patent. Nor was any such proof or evidence offered or introduced, showing any excuse why the same was not offered or furnished.”

The defendant, at the close of the plaintiffs’ evidence, and again at the close of the whole evidence, moved the court to direct a verdict for the defendant upon the ground that plaintiffs had failed to make this proof. A decision on this question was reserved by the court. The verdict being for the defendant, no decision was directly made upon the motion. The counsel for the respondent, however, insists that the failure to make such proof was fatal to plaintiffs’ right to recover, and hence it does not become necessary to consider appellants’ assignment of error. We are of the opinion that counsel is correct. If plaintiffs, under the evidence, could not have recovered in the action, this court is not called upon to discuss or consider the errors assigned, as the judgment must necessarily be affirmed. We shall therefore proceed to consider this question.

The appellants contend that the stipulation to furnish the patent deed from the McCray Refrigerator Company was an independent stipulation or covenant, and that the plaintiffs were not required to prove that they furnished or tendered such a patent deed, to entitle them to recover on the contract. We are unable to concur in this view. It will be noticed that, from the nature of the contract, the part of it relating to the cold-storage was an important and essential part, and was to be constructed under the McCray cold-storage and refrigerator patents. The right to use the property so constructed under the patent must, we think, be regarded as an important element in the contract, to the subscribers; and the intention, therefore, of such subscribers must have been to secure that right, as a part of their contract. Hence, the stipulation is that plaintiffs should furnish a patent deed with said contract, or, to use the precise language of the contract, “We agree to furnish with said contract a patent deed from the McCray Refrigerator Company, … conveying all the rights under said patents.” The contract, also, as will be observed, provides that the subscribers agree to pay for said creamery and cold-storage when completed. Was it completed until the patent deed was furnished? We are of the opinion it was not, and that the agreement to furnish the patent deed was essential to the completion of the contract, and that proof of the same was necessary, to entitle the plaintiffs to recover. Whether or not a covenant is dependent or independent must be ascertained from the contract and attending circumstances, the rule being that such covenants will be construed as dependent unless a contrary intention appears from the terms of the contract. In the early case of President, etc., v. Hagner, 1 Pet. 455, the supreme court of the United States states the rule as follows:

“Admitting, then, that a contract was entered into between the parties, the inquiry arises whether the plaintiffs have shown such a performance on their part as will entitle them, in a court of law, to sustain an action for the recovery of the purchase money. In contracts of this description the undertakings of the respective parties are always considered dependent unless a contrary intention clearly appears. A different construction would in many cases lead to the greatest injustice, and a purchaser might have payment of the consideration money enforced upon him, and yet be disabled from procuring the property for which he paid it Although many nice distinctions are to be found in the books upon the question whether the covenants or promises of the respective parties to the contract are to be considered independent or dependent, yet it is evident the inclination of the courts has strongly favored the latter construction, as being obviously the most just. The seller ought not to be compelled to part with his property without receiving the consideration, nor the purchaser to part with his money without an equivalent in return. Hence, in such cases, if either a vendor or a vendee wish to...