The case was continued for advisement, and at a subsequent term the opinion of the Court was drawn up by
Emery J.Notwithstanding the wide range of able argument which this case has elicited on the subject of the eighteen requested instructions, we conceive that the cause is ultimately to be settled on the decision of but few of the questions which have been so elaborately argued.
The action is debt on bond. The plea is that it is not the deed of the defendants ; and in a brief statement they set forth the deed and say, that they have been always ready to perform all things on their part to be done and performed according to the true intent and meaning of said writing obligatory, whenever the said plaintiffs, on their part, should entitle themselves to a performance thereof, and that the plaintiffs have not performed the conditions and duties on their part first to be performed. In reply, this is denied by the plaintiffs, and they say, that although the plaintiffs were ready to perform all the conditions and stipulations named in said bond to be by them performed and tendered performance of the same according to the true intent and meaning of said bond; yet the defendants were unable to sell and convey to the plaintiffs the land named and described in said bond by good and sufficient deed of warranty, by reason whereof the defendants broke their covenants and agreements to and with the plaintiffs as set forth in said bond. And particularly that said land was incumbered by a mortgage from the said defendants to one Benjamin F. Copeland, dated January 7th, 1834, to secure the payment of four notes of §3127,50, and also to fulfill the conditions of a bond from said Copeland to one Samuel F. Lyman. Also that the township was originally granted by the Commonwealth oí Massachusetts to Justin Ely on condition that said 'Ely should settle on said township twenty families in four years and twenty families in eight years, which condition was never performed by the grantee, or any person claiming under him, whereby said township was forfeited and liable to be re-seized for non-fulfillment of said condition. That said land was also incumbered by a mortgage from Neal 1). Shaw, Benjamin F. Copeland, and John *282Lemist, to Samuel F. Lyman, conditioned to pay to said Lyman $ 10,000 in five annual instalments, with interest annually on the whole, from December 6,1832, the date of said deed.
The jury have said, that the defendants did waive the strict performance by the plaintiffs, of all the conditions on the part of the plaintiffs ; that the notes offered by the plaintiffs were good notes within the terms of the bond ; and that the notes made in the form they are and payable as they are, were good notes, within the meaning of good notes as understood by the parties. And as to the question, was the fact of the settling duties not having been released or commuted, known to the defendants and concealed by them from the plaintiffs at the time of executing the bond, the answer of the jury was, “ we have no testimony to govern us in a decision on that point.” And they say, that the other incumbrances were known to the plaintiffs at the execution of the bond. And the jury think that the defendants did waive objections to the notes on account of the place where made payable.
From the report of the trial, we learn, that if in the opinion of the whole Court any of the instructions given, were erroneous in matter of law, or if under the circumstances and facts proved in this case, instructions ought to have been given to the jury which the Judge declined to give, or the verdict is against law, or is not warranted by the evidence in the case, the verdict is to be set aside.
Now the evidence is clear, that on the interview at Augusta, it was stated by the defendants through their counsel to the plaintiffs that the notes and drafts were in Portland, where the same were payable, but if the plaintiffs wished to pay them the defendants could take the money, otherwise the plaintiffs must pay them where they were payable. On being asked, if the plaintifls meant to make an unconditional tender, the answer was no, and that they should not pay the notes and drafts at that time unless they could have an unincumbered title. They were admonished too that if the plaintiffs wanted a lawsuit they must do all on their part to place themselves in a situation to maintain it. It was also stated to the plaintiffs just before they left the room, or as they were leaving it, that the defendants wished the plaintiffs distinctly to understand, that the defendants did not consider the plaintiffs saying they had the *283money, as a tender, or what had been done as a compliance with the condition of the bond, and tbat the defendants would hold them to strict performance of all things on their part. vVé think the evidence did not -warrant the finding a waiver of this portion of the condition as to the payment of the money, unless we attribute to language, a meaning directly opposite to the sense in which we have always been accustomed, and in this case feel bound, to understand it.
To ascertain the meaning of the contract we must look to its terms and the situation of the parties, and the subject matter of the contract. The whole concern was a speculation, and preliminary to the right of the plaintiffs to claim an unincumbered title, they were absolutely to pay their money for their notes and drafts already given and negotiated.
The report also communicates that divers witnesses were examined on both sides, as to the goodness of the notes offered, who differed in their opinions as to the goodness of the notes when secured by the mortgage, but all of them agreed that the notes of Winslow, Bugbee, Cutter and Tinlcham would not be good, for their several amounts, without additional security, either of the land itself, or of some other security.
The instruction to the jury, that the value of the notes in connection with the property mortgaged, was to be taken into consideration, and that it was not necessary they should be good separate from the mortgage; the Court consider erroneous in matter of law* The finding of the jury must necessarily have been influenced by that instruction. The good notes should be such independently of the mortgage. And as the finding of the jury, that they were good must be taken to be in conformity with the direction of the Court, in this particular, that finding is ineffectual.
The defendants were seized in fee of the township. It was under incumbrances all of which were known to both parties, excepting the provision as to settling duties, which jt would seem, was at the time of the contract, unknown to them all. It does not appear that there was any absolute contract made by the plaintiffs to take and pay for the land. They might pay the sums, for which they had given their notes or drafts, omit to proceed further, and the defendants must bear their disappointment without complaint, and *284without remedy. It is true that in the deed of assignment to William Cutter, by John D. Gardner, dated the 2d of Nov. 1835, of his interest in the Fowler and Ely township, authorizing Cutter to settle for the same and to take a deed in his own name, he giving security therefor in Gardners stead, agreeably (as Gardner says) to a bond signed by Gardner and others on the seventeenth day of July then last, it might be implied, possibly, that some direct engagement had been made to take the land. Yet no such bond, signed by Gardner and others, was exhibited in evidence, nor any notice given to produce it, if any such were given. It is possible that he alluded to the bond now in suit. But whether he did or not, our construction is, that the payment of the notes or drafts was a prerequisite on the part of the plaintiffs, in order to sustain an action upon the bond. Campbell v. French, 6 Term Rep. 200. The plaintiffs treat the matter as a subsisting contract. The defendants are free from any imputation of deception, concealment or fraud. They have extinguished the mortgages. The settling duties are commuted.
The verdict must be set aside. A new trial however must be utterly unavailing to the plaintiffs.