Officer v. Sims

• Decision Date: 31 December 1870
• Citation: 49 Tenn. 501
• Parties: Alex. Officer et al. v. O. H. P. Sims et als.
• Court: Tennessee Supreme Court

49 Tenn. 501

Alex. Officer et al.

v.O. H. P. Sims et als.

Supreme Court of Tennessee.

December Term, 1870.

FROM WHITE.

Circuit Court at Sparta, W. W. GOODPASTURE, J., presiding.

E. L. Gardenhire, for plaintiffs, cited: On dependent covenants: 7 Bac. Abr., 489; Boon v. Eyre, 8 T. R., 373; 1 H. Black, 273; 1 Chitty, 349. In reciprocal covenants, one not a bar to the other: 2 Mod. 309; 5 Co., 10; Cro. Jac. 645; 2 Lev., 41, 102; Show, 391; Comb., 265; 7 Bac. Abr., Title Pleadings, B; Nichols v. Rainbred, Hob. 88; Ib. 106; Yelv. 134; Mod. 62; Roll. R., 336; Ventr. 41; Hard., 102; March, 75; Cro. Eliz., 137, 703; Lev. 20, 293; Leon., 186. Construction: 2 Bac. Abr., 550, 576; Ib., Covenant, F; Marvin v. Stone, 2 Cow., 781; Pavy v. Birch, 3 Miss., 447; Randall v. Chesapeake and Delaware Canal Company, 1 Harrington, 154; Quackenboss v. Lansing, 6 Johns., 49; Watchman v. Crook, 5 Gill. & Johns., 239; 2 Bos. & Pul., 13; 3 Ib., 565; 8 East, 80; 4 Dall., 440; Hookes v. Swain, Sid., 151; Keb., 511, S. C.; 2 Par. on Contr., 39, 41; Kingston v. Preston, 1 Ch. Pl., 311, 312. Where covenant goes to part of consideration: 2 Par. on Contr., p. 44, n. 45, and the first four authorities cited. Loss must fall on owner: Curd v. Bonner, 4 Cold., 633.

S. H. Colms, for defendant, cited: Ch. on Contr., 9 Am??ed., m., pp. 635 to 638, and notes; Meigs R., 22; 2 Sneed, 22; 3 Hay., 258, 263; 4 Hum., 341, 342. Loss falls on owner: Young v. Thompson, 2 Cold., 603.

W. J. Farriss, with Colms, insisted that the instrument need not be signed at the foot, citing: 1 Greenl. Ev., sec. 267 to 272, and notes; 3 Kent, 510; 4 Ib., 515; 2 Ib., 511; 26 Wend., 341; 18 Ves., 183; Chitty on Contr., 13, 356, 357, and note 2; 12 Johns., 102; Story on Pr. Notes, sec. 34. Kinds of Covenants: 1 Ch. on Pl., 321, 322, 324, 327, 329; 4 Hum., 468;7 Yer., 565;McFadgen v. Eisensmidt, 10 Hum., 567;Parker v. Parmele, 20 Johns., 130; Smith v. Woodhouse, 2 New York R., 233; Miller v. Drake, 1 Caines, 45; 2 Burr., 899; 8 East, 437; 13 East, 117; 2 Saund., 108; Story on Sales, p. 253; 7 Wend., 404; 1 Pars. on Contr., 148, 449; Chitty on Contr., 638; Dodge v. Coddington, 3 Johns., 146;Cunningham v. Morrell, 10 Johns., 203;Green v. Reynolds, 2 Johns., 207;Jones v. Gardner, 10 Johns., 266;Stephenson v. Kleppinger, 5 Watts, 420. Sale of personalty implies warranty of title: 5 Hum., 343, 496; on which trustee is personally liable: 6 Yer., 479. Plea of tender: Code, 2926; 3 Sneed, 524; 2 Eng. Law and Eq., 498; 2 M. & W., 228; Shep. Touch., 378; 2 Bro. & Bing., 165; 2 M. & S., 120. Construction of contract: Chitty on Contr., 5 Am. ed., 73, 76, 79, 80, 82, 83, 88. Property did not pass: Story on Sales, 274. Contended that Potter v. Coward, Meigs R., 22, and Tatum v. Jameson, 2 Hum., 298, did not apply. That 5 Yer., 282;10 Yer., 507;1 Hum., 466;2 Hay., 66, 208, are cases under the registration law.

The entry setting aside the judgment of dismissal mentioned in the opinion, was a simple statement that “on motion” the order was “set aside, vacated, and for nothing held,” without the usual recital that it was for “sufficient reasons appearing,” &c.

SNEED, J., delivered the opinion of the Court.

The action is brought upon an instrument in the words and figures following:

“$575.00 Twelve months after date, we promise to pay Alexander Officer and Luin Miller, executors of Nancy Officer, deceased, five hundred and seventy-five dollars, for value received, for a negro girl, Martha. But we hereby expressly reserve a lien on said slave for the purpose of securing the payment of the purchase money, at which time we agree to make a bill of sale to said purchasers. This 9th of January, 1862.

O. H. P. Sims, [Seal.]

Wm. Glenn, [Seal.]”

The instrument is signed only by the purchasers, who are the defendants in the cause.

The suit was instituted on the 22d of December, 1866, and the writ was returnable to the January Term, 1867, of the Circuit Court of White County. A declaration was filed at that Term, to which the defendants demurred, and the demurrer was sustained, with leave to file an amended declaration, which was done. To this amended declaration there was also a demurrer which was sustained, and the cause dismissed. On motion of the plaintiffs, this latter order was set aside, and leave granted the plaintiffs to file another amended declaration. At the May Term, 1867, the second amended declaration was filed. This declaration set out the instrument sued on, and concluded with these words: “And the said defendants then and there delivered said writing to the plaintiffs, but the said defendants, though often requested so to do, have not paid said sum of money, or any part thereof, to the plaintiffs, although plaintiffs aver that they were always ready, and are now ready and willing to make a bill of sale to the purchasers, according to the true intent and meaning of said writing. But defendants wholly failed and refused to pay the said sum of $575; wherefore the plaintiffs say they have been damaged $900, and therefore they sue.” To this declaration there was also a demurrer, which was sustained; from which judgment the plaintiffs appealed.

The questions of law arise upon the causes of demurrer assigned, which are the following:

1. That plaintiffs aver that they have always been ready to make a bill of sale; but do not aver that they ever offered, or tendered, or proposed to make a bill of sale, or notified defendants that they wanted an execution of the contract.

2. They also aver that they are now ready and willing to make the bill of sale, without averring any ability to do so.

3. They aver a readiness to make the bill of sale now, without tendering the same into court, which averment is therefore nugatory, and of no validity.

4. They aver that they are now ready to make the bill of sale, when the Court judicially knows that they can not make a bill of sale for any human being on this continent.

5. Nor do they aver that they tendered said bill of sale to the defendants, or offered to make it to them, before the commencement of this action.

6. And they demur generally, because it is not averred that they complied with, or offered to comply with, their part of the covenant, before bringing this action.

The issues upon the demurrer of defendants present several questions necessary to be considered in the adjudication of this cause, involving the construction of the instrument itself in reference to the character of its covenants-- whether, upon the proper interpretation thereof, the declaration is demurrable, and whether, in view of the great public events by which the title to slave property was extinguished, the loss must fall upon the plaintiffs or the defendants.

The course of modern judicial opinion, in the interpretation of covenants, has been to resolve all other rules into one of intention. The artificial, and often subtle distinctions, upon the doctrine of mutual or concurrent covenants, or covenants with dependent or independent conditions, must all be subordinate at last to the rule of intention, the only infallible touchstone for the interpretation of contracts.

Does the instrument sued on embody concurrent covenants, which are to be performed at the same time, or dependent covenants, in which the obligation to perform one is made to depend upon the performance of the other? The defendants insist that they are mutual covenants, or dependent agreements--the one to pay, and the other to convey upon payment.

It is observed in a note to the case of Pordage v. Cole, 1 Saund., 320; Comyn on Con., 51, that “almost all the old cases, and many of the modern ones, on this subject, are decided upon distinctions so nice and technical, that it is very difficult, if not impracticable, to deduce from them any certain rule or principle, by which it can be ascertained what covenants are independent, and what dependent.” And it is stated, as a doctrine to which the courts have always adhered in the construction of covenants, that, “where the dependence or independence of the respective engagemnts is only to be collected from the evident sens?? and meaning of the parties, the rule is, that, however the covenants or promises may be transposed, their precedency must depend upon the order of time in which the intent of the transaction requires their performance.” Com. on Con., 51. And, again, it is said that they are to be construed to be dependent or independent, not according to their arrangement in the deed, but according to the intention and meaning of the parties, and the order in which the several things are to be done, and technical words should give way to such intention. 2 Bac. Ab., 614; 7 Term R., 130; 8 Term R., 366. The familiar example in the old authorities is, “if a day be appointed for the performance of the covenant on one part, and it is to happen, or may happen, before the covenant in the other part is to be performed, the covenants are not dependent. 2 H. Bl., 388; 1 East, 629; 2 Johns., 272; 2 Bac. Abr., Bouv. Ed., 614.

This contract was for the sale and purchase of a slave, which it is stated at the bar, was, at the time of the sale, delivered to the purchaser. There is one feature in the contract, which has been criticised at the bar, which might render it very doubtful, aside from all other questions, whether it contains any reciprocal covenant at all. The vendors of the slave have no where in the contract bound themselves to the performance of any of its covenants, by signing the same, or otherwise. This might become a serious question in a court of law, if an action were possible upon the alleged covenants of the plaintiffs. The intention to create reciprocal obligations is very...