Marshall v. Craig

• Decision Date: 24 October 1809
• Citation: 4 Ky. 386
• Parties: Marshall v. Craig, upon a reconsideration.
• Court: Kentucky Court of Appeals

4 Ky. 386

Marshall v. Craig, upon a reconsideration.

Court of Appeals of Kentucky.

October 24, 1809

OPINION

BIBB Chief Justice.

NEXT to the doing of right, and a consciousness to have faithfully fulfilled those solemn obligations by which we are bound to justice and the laws, we hold in estimation the administration of justice to the satisfaction of the public. That in every controversy both parties should depart satisfied, however devoutly to be wished, however consoling to a mind of sensibility, is, nevertheless, a picture too flattering to be believed, too unlike the mildest features of justice to be indulged. To arrest and enchain the public as well as each individual opinion, and secure their willing assent to a judicial decision, is worth endeavoring though beyond attainment, perhaps, in the present condition of man. Having in view the ends proposed in the establishment of a government of laws, the Court have considered and reconsidered the points in controversy between these parties it is their duty to state the final result, and the principles upon which they have decided.

The case, stript of the forms of pleadings and the minutiæ of evidence, is concisely this:

Craig sold to Marshall a certain tract of land, the complete title to which involved the relative merits of certain claims called Craig's, Pelham's, and Briscoe's. These claims Craig covenanted to unite, the two former absolutely the latter sub modo; and sold them, to a certain extent, to Marshall, that is to say, to the extent of 330 acres, at the price of twelve and a half dollars per acre. Marshall, on his part, as an inducement and consideration of the covenant on the part of Craig, stipulated to pay one third of the purchase money on the transfer of Craig's claims, one third on the transfer of Pelham's claim, the other third was to abide the transfer of Briscoe's claim, on such election as Craig should make under the modifications of his covenant respecting that claim. Marshall further covenanted that Craig should have the pre-emptive right of Briscoe's claim for " --years." It was farther stipulated between the parties, that if Craig did not use his said pre-emptive right and secure Briscoe's claim within the term limited, that then Marshall should be at liberty to purchase the said Briscoe's claim, " and that on his own account, and not for the benefit of the said Lewis Craig." It is admitted in the pleadings and in argument that Craig did transfer the rights of Craig and of Pelham, nor is it a point controverted but that Marshall did, shortly after the date of the covenant, interfere and acquire to himself the claim of Briscoe, at least so far as it overhangs the 330 acres aforesaid; and it is admitted that Marshall has paid the price of twelve and a half dollars per acre, except the sum which he alleges was paid by him for Briscoe's claim.

By reference to the former opinion of the Court a more minute statement of the contract will be seen, but this is deemed sufficient to bring into full view the main questions in the cause.

The first question to be considered is, shall Craig be bound to allow Marshall the price he may have paid for Briscoe's claim, admitting that price to be far less than the portion of the purchase money suspended and dependent upon Craig's covenant to unite that claim to the others? It is not pretended that Marshall purchased Briscoe's claim at the instance or request of Craig; that he derived no authority to do so from the contract is clear. It is therein declared that a pre-emptive right is established in Craig. The contract also provides a period at which Marshall should be at liberty to purchase. The expression of that period or event carries along with it the exclusion of a purchase by Marshall at a prior period or on a prior event. The maxim may here well apply, expressio unius, est exclusio alterius. But the terms in which the covenant, upon this subject, is penned, silence all claim of authority for Marshall to purchase within that period, even for the benefit of Craig; for the draftsman seems to have had in mind the rule of equity, that the vendee of an estate shall not purchase up an adversary claim to defeat his first purchase or if he does, that it shall, at the election of the first vendor, enure to his benefit upon paying the price of the second purchase. Lest the permission to Marshall, when the contingency should happen, might even then be construed as a bar permission to purchase for the benefit of Craig he adds, " " " and that for his own benefit, and not for the benefit of Craig." Of what use will the reservation of a pre-emptive right be to Craig if, within the period limited, Marshall may interfere, and drive him either to pay the price which Marshall pays for Briscoe's claim, or abandon his claim for the third of the price of the land sold. It is said he may sue upon that breach of covenant only, and have appropriate damages assessed. But what damages has he sustained? If he cannot claim this breach on the part of Marshall as entitling him to demand payment of that part of the consideration which had been postponed for Briscoe's claim, then he has sustained damage, by Marshall's purchase, equal to the difference between the sum suspended and such a contract as Craig might have made but for Marshall's intermeddling. But if Marshall is to be allowed what he paid, before Craig can save himself from his covenant to purchase Briscoe's claim, and thereby demand the payment as upon a compliance with his covenant, yet it follows, that Craig has sustained damage equal to the difference between what his own contract might have been, and that which he must allow Marshall. But how can a jury try what might have been if a previous event had not happened? Craig contracted to have a certain time for making an experiment of his own means of securing Briscoe's claim; Marshall has prevented this experiment, and would now refer it to the book of possibilities. Craig might have induced a surrender of Briscoe's claim as of inferior dignity, and ineffectual against the other claims he sold to Marshall; he might have purchased it for a cent, or made as good a bargain as Jackson did. Craig was induced to postpone the payment of a large portion of the purchase money until he should secure Briscoe's claim; Marshall covenanted that Craig should have the pre-emptive right of that claim for a certain time: could either party have expected, if good faith was observed, that within the period Marshall, by his purchase of Briscoe's claim, could compel Craig, (to entitle...