The opinion of the Court was draw up by
Putnam J.We think that the note, toe receipt and the bond, should be construed as if they were parts of one contract.
The plaintiff on his part agreed to convey the and to the *397defendant when he should pay the purchase money, and the defendant agreed to pay the purchase money when the plaintiff should convey the land. As no time for the conveyance or for the payment is mentioned, the law supplies the deficiency, by providing that the contract should be executed in a reasonable time. And an offer to do what the contract required of either party, and a demand and refusal of the other to do what was required by him, would entitle the party so offering to perform, to a remedy upon the contract. It is clear to our minds, that the contract, is to be construed as containing dependent stipulations. Neither party intended to trust to the personal security of the other. If Hunt had in a reasonable time offered to give a good deed of the land, and had demanded payment of the money mentioned in the note, and Livermore had refused to accept the deed and to pay according to his engagement, Hunt would have had his remedy at law against Livermore for the purchase money. On the other hand, if Livermore had in a reasonable time offered to pay his note, and had demanded a deed, and Hunt had refused to accept the money and to give the deed simultaneously, Livermore would have bad his remedy at law against Hunt for the damages sustained by his not conveying the land according to his agreement.
If the stipulation contained in the receipt of the plaintiff, to deliver up the note upon the defendant’s delivering up the bond, “ provided the bargain is not carried into effect,” were to be construed to give either party an election at his own pleasure to annul the contract, it is evident that the contract could never be carried into effect against him who should please to avoid it. It would in effect have no binding operation. It would not be what the civil law defines, “ juris vinculum quo necessitate adstringimur.” “ It is of the essence of all agreements which consist of promising something, that they should produce an obligation in the party making the promise, to discharge it; hence it follows, that nothing can be more contradictory to such an obligation, than the entile liberty of the party making the promise, to perform it or not as he may please.” Pothier on Oblig. no. 47, 48. The ease at bar strongly illustrates that position. If it were, that *398either party had the entire liberty of vacating it, the contract wouId be void for want of obligation. It would stand thus ; — Hunt engages to convey his land to Livermore for 1400 dollars, if Hunt shall please to do so ; and Livermore engages to pay 1400 dollars for the land, if he shall please to do so. We cannot suppose the parties intended to make such a vain bargain. We are satisfied that it was a valid contract, containing dependent stipulations to be performed by each before he could compel a performance by the other. It follows therefore, that the plaintiff was not entitled to the money or price of the land, inasmuch as he neglected to offer to convey the land by a proper deed.1
We are all of opinion that the default should be taken off, and that the plaintiff should be nonsuited.
See Willington v. West Boylston, 4 Pick. 103; Stark v. Parker, 2 Pick (2d ed.) 275, n. 1; Couch v. Ingersoll, id, 300, n. 1, and 203, n. 1; Kane v. Hood, 13 Pick 281; Manning v. Brown, 1 Fairfield, 49.