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Ought the judgment so to be made up in a suit upon a mortgage conditioned to be void if the mortgagor fulfils an obligation to support the mortgagee during his natural life? When there is a breach of such an obligation and the mortgagce sues for possession of the mortgaged estate, shall his damages be assessed once for all, and the conditional judgment rendered for the amount, or is he entitled only to a conditional judgment for the cost of his support up to the time of the commencement of the action or the trial thereof in court ?

It was held in Sibley v. Rider, 54 Maine 466, following the doctrine of Philbrook v. Burgess, 52 Maine 271, that the true measure of damages, and the sum for which conditional judgment should be rendered in a suit upon such a mortgage, “is a present equivalent for full performance; and if the parties submit without exceptions to a less sum, the judgment will nevertheless be conclusive." Satisfaction of it will operate as a complete satisfaction of the obligation and mortgage, so that no action can subsequently be maintained upon either. Hard as this may seem in a case where a party ignorant of his legal rights had had judgment in such a suit entered up for past damages only, we think a little reflection will make it clear that the contrary doctrine and practice would so completely deprive the mortgagee of any effectual remedy as to work still greater injustice.

There seems to have been at one time a doubt whether mortgages of this description were subject to redemption after breach of the condition; but this court held in Bryant v. Erskine, 55 Maine 157, that they are so.

And this is doubtless right; but it is easy to see that the mortgagee who, as is usual in such cases, has conveyed his whole estate, relying upon prompt and punctual performance by the mortgagor for his daily bread, would be in a sorry plight if he were forced to depend for his means of subsistence upon such credit as the right to maintain a succession of small suits for the recovery of money actually advanced would give him.

After paying the expenses of litigation, little would remain for the support of the obligee.

On the other hand, the party who receives a conveyance of property upon the strength of his agreement to furnish a life maintenance to the grantor, if required, when he fails to perform his contract, either to restore the possession of what he has received or to furnish the means of making his undertaking good, has no cause of complaint. He simply abides the natural and necessary consequences of his own delinquency.

A review of the question only confirms us in the conviction that an adherence to the doctrine of Sibley v. Rider, and Philbrook v. Burgess, ubi supra, will best subserve both law and justice. It was the duty of the referee, standing as he did in the place of both judge and jury, to determine not only whether the continuing agreement of the defendants had been broken, but to ascertain what sum would be, in equity and good conscience, a present equivalent for full performance; and for such sum it would follow that a conditional judgment should be entered.

Exceptions overruled.

WALTON, DANFORTH and PETERS, JJ., concurred.
VIRGIN, J., concurred in the result.

Eaton v.

There is a very important practical,

tinued : Hill v. Barclay, 18 Ves. 56, as well as legal question involved in

where the general question is extensively this case, but which the court seem to discussed by Lord Chancellor ELDON. regard as settled by former decisions of

The same rule seems to have been then the court under statutory provisions. well established by the earlier decisions : This class of contracts is very common

Bracebridge v. Buckley, 2 Price 200; in the country, and it seems to us to

Lyon, 3 Ves. 693. And still, involve questions not easy to be dealt

a covenant to repair, although involving with in many cases. A condition in a

personal service, is as much susceptible deed of land, dependant upon the per

of pecuniary compensation as almost formance of a contract for maintenance any other, and we doubt not a forfeiture or support, in whatever form it is made,

of this kind would ordinarily, in this cannot be justly regarded as a mere

country, be relieved against in equity. mortgage for the security of a pecuniary But a contract for maintenance and oliligation. The contract is unquestion- support is of a very different character. ably of a fiduciary and personal charac

It is as strictly fiduciary and personal ter, and one which courts of equity will

as any other, and has often been so held. not relieve against the forfeiture of, by Hence it has been held that such conany means, as matter of course,

That tracts are not assignable, as it is of their is a matter resting in the discretion of very essence that they should be perthe court, and dependant upon the cir

formed by and between the parties to cumstances of the particular case, unless

the contract : Bethlehem v. Annis, 40 N. controlled by statute. The conveyance,

H, 34. And where the contract was to depending upon the continued perform- pay a debt of a certain amount by supance of the condition, becomes inopera- porting the mortgagee for a certain tive upon failure, and a court of equity agreed term, it was held the mortgages will not grant relief, even in the case of

could not relieve himself from the conmere non-repair of the premises, where dition by paying the money: Hawkins the neglect has been wilful or lony-con- v. Clement, 15 Mich. 513. But it seems

to have been held in many of the states the failure to perform the contract has that, where the mortgagee has failed to not been wilful, and is reasonably susperform the condition, equity will relieve ceptible of compensation in money : by decreeing an equivalent in money : llenry v. Tupper, 29 Vt. 358 ; Olcott v. ilder v Whittemore, 15 Mass. 262 ; Dunklee v. 16 Vt. 478; Tracy v. HutFiske v. Fiske, 20 Pick. 499 ; Bethlehem chins, 36 Vt. 225. V. Annis, supra. And the cases cited We think it must be obvious to any in the principal case show that such has one that if there is any class of contracts long been the practice in Maine. But where courts of equity would be justified the subject is controlled by statute in in holding a firm hand upon claims for all these states : Hilliard on Mort. 119, relief from wilful and wanton forfeitures, in note. And the case of Austin v. it would surely be expected here. We Austin, 9 Vt. 420, is cited by text- have said all we desire to say in regard writers as having established the same to the question in Henry v. Tupper, supra, rule in that state. But the later cases where the authorities are carefully rethere do not admit an unqualified right viewed, and the same will be found in of redemption in the mortgagor in this our edition of Story's Eq. Jur. & 1326 class of contracts, but, at most, only in a, and note.

I. F. R. the discretion of the court, and where

Supreme Court of Ohio.


Where the plaintiff, in pursuance of an agreement with the defendant, furnished the materials and constructed a carriage for the defendant, in accordance with his order and directions, for which a stipulated price was to be paid, and the defendant refused to receive and pay for it when completed and tenderedIIeld, that in an action brought for that purpose, the plaintiff is entitled to recover the contractprice and interest from the time the money should have been paid,

Motion for leave to file a petition in error.

The contract between the parties was substantially as follows: Van Nest, a carriage-maker, agreed with Shawhan, on the 1st of August 1871, that for seven hundred dollars he would furnish the materials and make for Shawhan a two-seated carriage in accordance with his directions, and have the same completed and ready for delivery at Van Nest's shop on the 1st day of October following; in consideration of which Shawhan agreed to accept the carriage at the shop, and pay Van Nest the contract-price for it.

In his petition in the Court of Common Pleas, Van Nest set out the contract in terms, and averred that he had complied with it in all

respects on his part, and that on the 1st of October 1871, he tendered the carriage to Shawhan at his shop, and requested him to accept and pay for it, which he refused to do. Judgment was


asked for the contract-price, with interest. The answer denied each and every allegation of the petition.

On the trial, the evidence established the contract and other allegations of the petition, and also showed that the plaintiff vas still keeping the carriage subject to the defendant's order.

The court instructed the jury that if they found the issues for the plaintiff, they should give him a verdict for the contract-price of the carriage, with interest from the time the money should have been paid. To the charge thus given, no exceptions were taken; but Shawhan, by his counsel, requested the court to give to the jury the following special instructions:

“1. If, in this case, the evidence shows that the defendant ordered the plaintiff to make for him a carriage, and agreed to take or receive it, when finished, at the plaintiff's shop, and to pay a reasonable price therefor, and the plaintiff did, in pursuance of such order and agreement, make such carriage of the value of seven hundred dollars, and have the same in readiness for delivery at his shop, of which the defendant had notice; and the defendant then failed, neglected, and refused to take, receive, or pay for said carriage, though requested so to do by the plaintiff, these will not authorize you to render a verdict for the plaintiff for the price or value of the carriage.

“ 2. If the plaintiff has proved the making of the carriage for the defendant, and the refusal of the latter to receive and


for it, as alleged in the petition, then he can only recover for the damages or losses he has actually sustained by reason of this refusal of the defendant, which is the difference between the agreed price and the actual value.”'

These instructions the court refused to give, and Shawhan excepted.

The jury found for Van Nest, and gave him the contract-price of the carriage, with interest.

Shawhan moved to set aside the verdict, and for a new trial, on the ground that the court erred in refusing to give the instructions requested; which motions were overruled by the court, and he excepted; and judgment was entered on the verdict for the plaintiff.

The case was taken to the District Court, which affirmed the judgment of the Common Pleas. Shawhan now moves this court for leave to file a petition in error to reverse the judgment of the District Court.

11. P. Noble, for plaintiff in error.—The measure of damages in a case like this, is the loss sustained by the vendor on account of the failure of the vendee to accept and pay for the property which was the subject of the contract. If the plaintiff's theory, that the measure of damages is the price of the property, is correct, it must be because such a contract as that set forth in the petition, vests the title of the property contracted for in the defendant, and passes it from the plaintiff. But the contract set forth in the petition was merely executory, and the petition avers there was no delivery or acceptance of the goods; so no title did or could pass to the purchaser: Ormsby v. Machir f. Renick, 20 Ohio St. 295; Downer v. Thompson, 2 Hill 137; Hague v. Porter, 3 Id. 141; Moody v. Brown, 34 Maine 107; 10 Bing. 512; Atkins v. Bell, 8 B. & C. 277; Benjamin on Sales 215; Allen v. Jarvis, 20 Conn. 37; Lang on Sales 476, and cases cited; Nixon v. Niron, 21 Ohio St. 114; Doolittle v. McCullock, 12 Id. 360; Sedgwick on Damages 43; 11 Am. Law Reg. N. S. 271; Jones v. Patton, 3 Ind. 107.

G. E. Seney, for defendant in error.— The recovery should be for the contract-price. For the rule when an article is bargained and sold and not delivered, the court is referred to Swan's Treatise (9th ed.), 590; Hadly v. Pugh, Wright 554; Story on Sales, sect. 314; Sedgwick on Damages 280; Story on Contracts, sect. 845; 3 Parsons on Contracts (ed. 1873) 208, 209; 1 Parsons on Contracts 535; Dustan v. Mc Andrew, 44 N. Y. 72. For a mechanic's remedy, who makes an article to order and his customer refuses to receive it, see Bement v. Smith, 15 Wend. 493; Thompson v. Alger, 12 Metc. 428. The opinion of the court was delivered by

GILMORE, J.—The only question to be determined in this case is: Did the court err in refusing to give to the jury the special instructions requested by the defendant on the trial below? The authorities cited by counsel for the parties respectively, are not in harmony with each other on this question. Some of those cited by the plaintiff in error (defendant below) show clearly that, under the pleadings and practice at common law, there could be no recovery under the common counts in assumpsit, for goods sold and delivered, or for goods bargained and sold, where no delivery suficient to pass the title from the vendor to the vendee had been

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