Fear v. Wilcox

• Decision Date: 30 June 1860
• Citation: 7 Jones 481,52 N.C. 481,78 Am.Dec. 260
• Court: North Carolina Supreme Court
• Parties: CAPE FEAR AND DEEP RIVER NAVIGATION COMPANY v. GEORGE WILCOX.

7 Jones (NC) 481

52 N.C. 481

78 Am.Dec. 260

CAPE FEAR AND DEEP RIVER NAVIGATION COMPANY

v.GEORGE WILCOX.

Supreme Court of North Carolina.

June Term, 1860.

One who prevents the performance of a condition, or makes it impossible by his own act, shall not take advantage of the non-performance.

Where a statute, incorporating a company, gives a remedy by the sale of stock within three years after an assessment, and then by a suit for the balance due, it was Held the plaintiff had three years from the sale of the stock, to bring suit for the balance; for, until such sale, no balance could be ascertained.

ACTION of ASSUMPSIT tried before BAILEY, J., at the last Spring Term of Chatham Superior Court.

The plaintiff declared under the 9th section of the acts of 1848, incorporating the Cape Fear and Deep River Navigation Company, to recover the balance due on the following subscription.

“We, the subscribers, promise to pay the amount annexed to our names, provided that the suits now pending in Moore court of Equity, are decided in our favor, and that it is understood that we pay no instalment or money, for the opening of the river, until these suits are decided in our favor. February 28th, 1849.

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                ¦George Wilcox, ¦$750.”¦
                +----------------------+
                

The suit referred to, was compromised by the defendant's paying the cost and some money, and taking a release and deed of quit claim from Williams, his adversary in that suit. Nothing was ever paid by the defendant on his subscription, but, after the last assessment, on the stock subscribed, was made, to wit, 20th of January, 1853, the defendant's stock was regularly sold on the 9th of May, 1854, in strict pursuance of the section of the charter above referred to. Under this state of things, the Judge instructed the jury that the plaintiff was entitled to recover. Defendant excepted.

Verdict for the plaintiff, from which defendant appealed.

Haughton, for the plaintiff .

Phillips, for the defendant .

PEARSON, C. J.

One who prevents the performance of a condition, or makes it impossible by his own act, shall not take advantage of the non-performance. Lord COKE illustrates the rule by this case: “If A be bound to B, that J. S. shall marry Jane G. upon such a day, and before the day B marry with Jane, he shall not take advantage of the bond, for that he, himself, is the mean that the condition could not be performed, and this is regularly true in all cases.” Co. Lit. 20 b.

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