Pead v. Trull
| Decision Date | 19 May 1899 |
| Parties | PEAD v. TRULL. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Geo W. Poore, for plaintiff.
Fred. N. Wier, for defendant.
This is an action of contract upon an indenture by which, in consideration of the plaintiff Pead's covenant, Whitman covenanted to convey certain land to Pead within 45 days, and Pead, in consideration of Whitman's covenant, covenanted to convey certain land to Whitman within 45 days, and further covenanted to pay him $1,500 upon receiving a deed of Whitman's land, and to give Whitman a note for $3,000 secured by second mortgage on the Whitman land, and to assume and pay a first mortgage, with interest from the date of the conveyance to him. Then followed mutual covenants to pay $500 as indemnity and liquidated damages, in case of failure to perform the agreement. Before the 45 days elapsed, Whitman died, and on the last day, no administrator having been appointed, the plaintiff, to save his rights, tendered performance on his side to the widow of Whitman and to the defendant Trull, who had been Whitman's attorney in other matters, and who afterwards was appointed administrator; but apart from other technical difficulties, the deed tendered by the plaintiff ran to Whitman, the dead man.
It appears to us that the covenants ought to be construed as mutually dependent. There is some little suggestion of independence to be drawn from them, but nothing on the whole strong enough to overcome the presumption that, in an exchange, performance on the two sides is concurrent. Goodisson v. Nunn, 4 Term R. 761. In actions upon such covenants the plaintiff must show performance on his side or readiness to perform, and a refusal by the other party. Brown v. Davis, 138 Mass. 158; Hapgood v. Shaw, 105 Mass. 276, 279; Smith v. Railroad Co., 6 Allen, 262, 273. But, in a case like the present, under our statutes the administrator was the natural and proper person to perform the contract, as he was the one to receive the money from the plaintiff. Pub.St. c. 142, § 1. It was impossible to demand performance of him, or to offer it to him within the 45 days, and therefore the plaintiff was not in default for not having done so, and the contract was not discharged at the end of that time. Of course the contract was not discharged by the death of a party.
The plaintiff's tender, although defective as such, is evidence...
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