The plaintiff declared on the following covenant in writing: "The said James H. Walker, for the consideration herein after mentioned, doth, for himself, his heirs, executors and administrators, agree to, and with the said Richard T. Allen, *Page 59 his heirs and assigns, by these presents, that he, the said J.H. Walker, shall and will, on, or before, if required, the 10th day of January, 1857, at his own proper costs and charges, by good and lawful deed, well and sufficiently grant and convey unto the said Richard T. Allen, his heirs and assigns, in fee simple, clear of all incumburances, all that messuage, c," (describing a house and lot in Halifax).
"In consideration whereof, the said Richard T. Allen, for himself, c., doth covenant and agree to, and with, the said James H. Walker, his heirs and assigns, by these presents, that he, the said Richard T. Allen, shall and will, on the execution and delivery of the said deed as aforesaid, well and truly pay unto the said James H. Walker, c., the sum of two thousand dollars," (in bonds with sureties.) Dated 5th day of December, 1856, and executed by both the plaintiff and defendant.
The plaintiff declared for a breach of the covenant, in not delivering bonds as specified in his contract. The defendant pleaded the general issue, conditions performed and not broken, and denied by his plea, that the plaintiff had performed his part of the covenant.
It was proved that the plaintiff's wife was in possession of the premises when he married her, which was two or three years before the contract of sale, and that they were still residing there at the date of this contract; that on the 7th day of January, 1857, the plaintiff's brother, as his agent, was sent with a deed, in proper form to pass the fee simple by the plaintiff and his wife, (with a privy examination endorsed, and a judge's fiat for registration,) to the residence of the defendant, who lived at Gaston, about twenty miles from Halifax town, where the plaintiff resided, and that on his arrival, he informed the defendant that he had come, in behalf of the plaintiff, to execute the bargain about the premises; that he had brought the deed of the plaintiff and his wife, conveying the premises to the defendant, and had it ready, and at the same time produced and tendered it, *Page 60 declaring his readiness to deliver it, on the defendant's complying with his contract.
The defendant declined receiving the deed, saying, that since making the contract, he found that his wife was unwilling to remove to the premises; that he did not intend to take the place, and if the plaintiff recovered any thing, he must recover it by law; that he would spend any amount of money, in reason, rather than go to Halifax, and that he hoped, under the circumstances of the case, plaintiff would let him off. This agent returned and informed his principal of what had taken place between defendant and himself, after which nothing passed between the parties before or on the 10th of the January.
On the 21st of January, the premises were sold at auction and brought $1610. It was admitted, that if the plaintiff was entitled to recover more than nominal damages, the measure was the difference between what the defendant was to give and what the premises sold for. His Honor instructed the jury, that, upon the facts adduced, the plaintiff was entitled to recover. Defendant excepted. Verdict and judgment for the plaintiff, and appeal by defendant. This case falls under the second class of cases, which are discussed inGrandy v. Small ante, 50. The principle is: "If a party to an executory contract is in a condition to demand a performance by being ready and able at the time and place, and the other party refuses to perform his part, anoffer is not necessary." The time is fixed by the contract, to wit, the 10th of January, 1857, but the place is open. The plaintiff procured his wife to join in the execution of a deed to the defendant for the premises, which was duly acknowledged, with a fiat for registration, which he sent by an agent, who, on the 7th of January, offered to deliver it, if the defendant would execute the bonds according to the contract. The defendant declined receiving the deed, saying that he would *Page 61 not comply with his contract. The question is, do these facts support the averment that the plaintiff was ready and able to deliver the deed on theday? No place being fixed by the contract, the rule is, where a party is bound to pay money, or deliver any thing, other than ponderous articles, it is his duty to take it to the other party. The plaintiff did take the deed to the defendant and tender it, but it was before the day. He then had no right to require the defendant to accept it and deliver the bonds; consequently the defendant had a right to refuse to accept it at that time. Did his repudiation of the contract relieve the plaintiff from the duty of again taking it to him on the day fixed by the agreement? The place is fixed by the law. So, it was not the duty of the defendant to fix a place, and he was in no default in not doing so. Herein this case differs fromShaw v. Grandy, decided at this term, (ante 56.) There, the place was fixed by the contract, and the time was open, and it became the duty of the defendant, under the circumstances, to fix a day. He was in default in not doing so. Here, the time is fixed by the contract, and the place by law, and we can see no ground upon which the plaintiff was discharged from the necessity of having the deed at the time and place. If he had carried it there, the class of cases above referred to, dispenses with the necessity of his making a formal offer to deliver it after the defendant had refused to perform his part of the contract; but the averment of readiness and ability to perform on his part, at the time and place, is not proved by his having the deed at home. It was certainly in his power, for aught that had been done or said, to have had the deed at the right place on the day. His not being ready and able was not caused by the default of the defendant, nor was he prevented by the defendant from having the deed there, or requested not to have it there; and as he intended to insist upon his legal rights, and knew that the defendant thought hard of it, it behooved him to see to it that all was done on his part that the law required. It is true, that the defendant had said positively that he would not comply, and begged to be discharged; but it is *Page 62 unreasonable to infer that he thereby intended to dispense with any act on the part of the plaintiff that was necessary to be done in order to fix his liability. It is equally unreasonable to allow a party to go to the other before the day and extract a declaration that he does not intend to fulfil the contract, and then make use of it as an excuse for not performing an act that would be otherwise necessary, in order to perfect his cause of action! What right has he to do so? How does the declaration benefit the other party, or injure him? How is it to be known that if he had put himself in a condition to demand a performance, and made the demand at the time and place, the other, seeing that his liability was fixed, would not have changed his mind? Upon what ground is he to be deprived of the locuspenitentiae? If there be a request expressed, or implied, that he would not be at the trouble and expense of putting himself in a state of readiness, such request will be imputed to its effect upon the question of damages, and if acted upon, there is a consideration, and the case would fall under the principle of Cort v. Ambergate Railway Company, 6 English Law and Equity, 230, and others cited in Grandy v. Small, decided at this term, (ante 50,) and dispense with readiness and ability at the time and place. In this case there is nothing that can be tortured into a request not to do what was required on his part. No possible benefit could accrue to the defendant by dispensing with it, and there is no sense in supposing that he intended gratuitously to enable the plaintiff to subject him to the payment of damages in an easier manner than by strictly performing the stipulations of the contract.
This case is governed by Grandy v. McCleese, 2 Jones' Rep. 142; Grandy v. Small, 3 Jones' Rep. 8, and Grandy v. Small, ante, 50.
PER CURIAM, Judgment reversed, and a venire de novo. *Page 63