Dietrich v. Franz
| Citation | 47 Mo. 85 |
| Parties | JACOB DIETRICH, Respondent, v. CARL FRANZ, Appellant. |
| Decision Date | 31 October 1870 |
| Court | United States State Supreme Court of Missouri |
Appeal from Second District Court.
Davis & Houck, for respondent.
Where the acts or covenants of the parties are concurrent and to be done or performed at the same time, the covenants are dependent, and neither party can maintain an action against the other without averring and proving performance on his part. Whether we consider the particular language or the general intent of the parties, the covenants between them were mutually dependent and conditional, and the vendor can not recover without averring performance or an offer to perform on his part.
L. Brown, for appellant.
This was a suit upon a promissory note for $4,500. Defendant sets up that the note was given for the purchase money and as the final payment for half of a brewery and personal property belonging to it; that plaintiff gave a bond, conditioned to execute and deliver him a warranty deed for the property upon the payment of said note, etc., and also alleges various failures of the plaintiff to comply with his agreement to sell, and asks for a rescission of the contract. The answer was stricken out and judgment rendered by default.
The answer fails to state sufficient grounds for a rescission of the contract, but it does set out the consideration for the note, and shows that the plaintiff is not entitled to judgment without tendering a deed, according to the condition of his bond. It is not doubted that when a contract of sale is signed by both parties, and a payment is to be made and the deed delivered at the same time, the conditions are dependent, and can not be enforced by either without performance on his part. But counsel for plaintiff claims that when the purchaser gives his promissory note for the purchase money, and takes a separate obligation for a deed, the liability on the side of the maker of the note is absolute, and payment can be enforced without performance by the vendor. It is true that if the note is negotiated, the law merchant would enforce its payment in the hands of a stranger without reference to its consideration. But the payee and vendor holds it as part of the contract of sale, and no reason exists why it should not be so treated. The deed is its only consideration, and is due when the note is payable; and no reason can be given for holding mutual covenants to be dependent in any case that does not apply to this. The bond is expressly conditioned to convey upon the payment of this note, and mutuality requires that the vendor should convey if he seeks to recover. The obligations are not independent in form even, for that of one of the parties is made to depend upon the payment of the purchase money. Should that advantage over the other party be given the vendor when the consideration of the note which he holds, and which can be inquired into in his hands, is a conveyance to be made at the time of its payment?
This obligation is expressly recognized in Wellman's Adm'r v. Dismukes, 42 Mo. 101, though it is claimed to have been ignored in Bircher v. Payne, 7 Mo. 462, in Smith v. Busby, 15 Mo. 387, and in Thompson v. Crutcher, 26 Mo. 319. An examination of two of these cases, however, will show that no decision was made contrary to the doctrine now held. In the first case, the note given for the purchase money was sued by an assignee, and it appeared that when it was made there was an agreement to postpone its payment upon a certain contingency. The court likened it to a contract of forbearance to sue, which could not be pleaded as a defeasance, but might be the...
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Lanyon v. Chesney
...and conversely, and neither can proceed against the other without himself performing or tendering performance before suit. Deitrick v. Frantz, 47 Mo. 85; Wellman, v. Dismukes, 42 Mo. 101; Hes v. Ellidge, 18 Kan. 296; Morrison v. Terrell, 27 Kan. 326; Soper v. Gabe, 55 Kan. 641. (9) The unde......
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Cress v. Blodgett
...Moby, 7 S. & M. [15 Miss.] 340; Liddell vs. Sims, 9 S. & M. [17 Miss.] 612; Doe vs. Thompson, 2 Foster [[N. H.] 217; Wellman vs. Dismukes, 42 Mo. 101; Dietrich vs. Franz, 47 Mo. 85; Hunt vs. Livermore, 5 Pick. [Mass.] 395; Kane vs. Hord, 13 Pick. [Mass.] 281; Denny vs. Kile, 16 Mo. 45......
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Olmstead v. Smith
...in the petition or on the trial. 3 Wash. R. P., 581; Thompson v. Jackson, 10 Bush. (Ky.) 424; Yonge v. Gilbeau, 3 Wall. 641; Dietrich v. Franz, 47 Mo. 85; Pershing v. Canfield, 70 Mo. 140. The verdict should have been set aside and a new trial granted. Plaintiff cannot sue for purchase mone......
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Lanyon v. Chesney
...to perform, of requirements of the terms of the contract. McGhee v. Bell, 170 Mo., loc. cit. 144, 70 S. W. 493, 59 L. R. A. 761; Dietrich v. Franz, 47 Mo. 85; Birge v. Bock, 44 Mo. App. 78; Minor v. Edwards, 10 Mo. 671; Barret v. Browing, 8 Mo. It is next insisted by respondents that the fa......