All. the facts of this case were agreed upon by the parties and stated in writing to the court. And upon the facts thus agreed upon and presented to the court there was, also by agreement, a trial of the case by the judge of the court without jury. The conclusion and judgment of the court was in favor of the defendants ; and it is argued that we can not review that conclusion and judgment because there was no special finding of the facts by the judge, reliance being had in support of this position upon Quillman v. Gurley, 85 Ala. 594, and the cases there cited. The argument and position are untenable. We do not in the least question the soundness of Quillman v. Gurley or the other cases in that line of authority, but to the contrary reaffirm them. The infirmity of appellees’ contention lies in its assumption that there was no special finding of the facts in this case. The court took the agreed statement of facts, covering, as it did, every fact in the *123case, as true and for all practical purposes found these facts to be true; and upon the facts thus specially stated and found to exist the judgment was rendered. This, we do not doubt, was a special finding of the facts within the statute and the adjudged cases, and the judgment upon them is in principle as open to review by this court as if there had been a jury, a special finding of these facts by them, and a charge to find for the defendants upon them with exception reserved.—Skinner v. State, 87 Ala. 105; Hardy & Co. v. Ingram, 84 Ala. 544.
This is an action of detinue prosecuted by LeBron et al. against Josiah Morris & Co., for the recovery of a cashier’s check which was deposited with the defendants by one Pickeriflg for delivering to the plaintiffs, if said Pickering should fail to comply in certain particulars with the terms of a contract entered into by and between him and LeBron and associates. The stipulation of this contract providing for the deposit of this check, or rather money for which the check was substituted by mutual agreement, is as follows : “It is further understood and agreed that said F. B. Pickering shall deposit with Josiah Morris & Co. one thousand ($1,000) dollars to-be forfeited to said A. W. LeBron if the land is not purchased and paid for and the electrical street railway is not constructed and put into operation as hereinbefore covenanted and agreed. Two hundred ($200) dollars of said amount is to be deposited upon the organization of a street railway company by said A. W. LeBron, B.. P. Lexter and Phares Coleman, and the transfer by said LeBron, Dexter and Coleman to said F. B. Pickering of all rights, franchises, stock, property &c. they may have in said street railway company ; and the remaining eight hundred dollars ($800) of said one thousand dollars ($1,000) is to be deposited with the said Josiah Morris & Co. upon the deposit with said Josiah Moms & Co. by said A. W. LeBron of a list of solvent subscribers to said bonds as required and stipulated for by the 6th article of this agreement, and to the satisfaction of the said F. B. Pickering. It is further understood and agreed that said one thousand dollars ($1,000) so deposited as a forfeiture can bo withdrawn from said bank at any time by a mutual agreement and consent by said A. W. LeBron and M. *124A. Williams. The stipulations of said contract in respect of the purchase by Pickering of the land referred to aboye are contained in paragraphs 1, 3, 4, and 5 of the contract, as follows: “First: The said A.W. Le-Bron, for the considerations and upon the conditions hereinafter mentioned, covenants and agrees to convey to the said F. B. Pickering in fee simple by warranty deed two hundred and thirty-two (232) acres of land, more or less, known and designated as Cloverdale, and formerly known as the Graham and J. G. Allen lands, being on the east side of the Norman Bridge road, south of the city of Montgomery, and bought by the said A. W. LeBron and associates from the South Montgomery Land Co The said warranty deed by said A. W. Le-Bron and associates is to be delivered in escrow to Josiah Morris & Co. to be delivered by them to F. B. Pickering, or assigns, upon the payment by him of the consideration and the performance of the conditions hereinafter mentioned, which conditions form a part of these articles of agreement.” “Third: The purchase price of the land herein agreed to be conveyed by the said A. W. LeBron and associates to said F. B. Pickering is one hundred thousand dollars ($100,000) which purchase money the said A. W. LeBron hereby agrees can be paid by the said F. B. Pickering by bonds of the corporation, formed and organized as covenanted and agreed in the second article of this agreement, at a valuation of eighty (80) cents on the dollar, it being hereby specially covenanted and agreed that the one hundred and twenty-five thousand dollars ($125,000) worth of said bonds, at eighty (80) cents on the dollar hereby agreed to be paid for said lands are to be redeemed and taken up by said corporation at the expiration of twelve months from the execution of this contract together with interest on said purchase money at the rate of 6 per cent, per annum, to be paid by said corporation when said bonds are redeemed. It is also expressly understood and agreed between the parties hereto that said F. B. Pickering, or his assigns, shall have the privilege and option of taking up and redeeming said bonds so given as the purchase price of said land, at any time they may see fit within the twelve (12) months from date of the execution of this contract. Fourth: It is also specially covenanted and agreed by and between the parties hereto that the *125said bonds given in payment of the land, as above stipulated, are to be secured by a first mortgage on all the lands conveyed by said A. W. LeBron and associates and upon the electrical street railway to be constructed and operated by said corporation. Fifth: Upon the completion and operation of the -electrical street railway, and after the execution of a written agreement by said corporation that it will redeem the bonds given for the purchase money of the la.nd, as hereinbefore stipulated, sometime, at its option, within .twelve (12) months from the date of this instrument, and upon the delivery by the said F. B. Pickering of the one hundred and twenty-five thousand dollars ($125,-000) in bonds, as above stipulated, to the said Josiah Morris & Co., to be delivered by them to the said A. W. LeBron, it is hereby covenanted and agreed that said deed from said A. W. LeBron and associates to said Pickeriug shall be delivered by said Josiah Morris & Co., to said Pickering, the escrow being thereby fulfilled, and all right, title and interest in said lands be vested in said Pickering.” The bonds above referred to were those to be issued by a corporation which Pickering and his assigns, successors, &c., were to organize “for the development and improvement of said land and the construction and operation of an electric street railway,” to which corporation Pickering was to assign all his right, title and interest to the land to be conveyed to him by LeBron and associates, as well as all other rights he Pickering was to acquire under the contract. This corporation was organized under the name of the “Cloverdale Land & Development Company.” In the agreed statement of facts — to which this contract was an exhibit — it was made to appear that at the time of the entering into this contract LeBron owned no interest in eighty-nine (89) of the two hundred and thirty-two (232) acres of land, which he thus covenanted to convey to Pickering, and that he did not subsequently acquire any interest or title therein or thereto, but this parcel belonged to one Allen. It w7as also shown that the remaining one hundred and forty-three acres of said land was owned by McClellan and Scheerer, LeBron and one Agee, Agee owming three-tenths of one-fifth (3-10 of 1-5) thereof, LeBron seven-tenths of one-fifth (7-10 of 1-5) undivided interest therein, and McClellan & Scheerer owned the *126remaining four-fifths of said land, and also held a mortgage executed by LeBron covering his undivided interest in the tract; and LeBron did not subsequently acquire any additional interest in this tract, except that of Agee. There was, however,'an agreement on the part of McClellan and Sclieerer to sell their interest in the land for $48,000, payable, it seems, out of the bonds which LeBron was to receive from Pickering; and on the part of Allen to sell his land to LeBron for $.10,000, payable, it seems,in money; and McClellan and Scheerer and Allen executed deeds to the lands and deposited them with Josiah Morris & Co., to be delivered to Le Bron on payment of said sums to them, respectively. Agee conveyed his interest also to LeBron. It further appears from the contract and the agreed statement of facts that LeBron should execute his warranty deed for' the 232 acres of land and deposit it in escrow with said Josiah Morris & Co., and to them were to be delivered the one hundred and twenty-five thousand dollars of bonds which were to pay LeBron for the land, and upon the deposit of these bonds they were, as we have seen, to deliver the deed of LeBron and associates out of escrow to Pickering, whereupon all rights, title and interest in the land were to vest in said Pickering. This deed of LeBron and associates was accordingly duly signed and deposited in escrow with Morris & Co., and there is nothing to show or to indicate in any degree hut that it would have been delivered to Pickering had he deposited the bonds with Morris & Co. as stipulated in the contract, but, to the contrary, the presumption is that it would have been so delivered but for Pickering’s failure in that behalf. On this part of the case, counsel for the defendant — appellee here — insist that Pickering was relieved from his obligation to deliver these bonds and take LeBron’s deed to the land, because the latter did not then have the title to the land, and that his failure to purchase the land and deliver the bonds under these circumstances, being as they say, caused, and therefore justified by. LeBron’s inability to perform his part of the contract, was not a breach of paragraph 7 thereof working a forfeiture to LeBron of the check on deposit with Morris & Co. We do not concur in this view. It is plain upon the very words of the contract that these bonds were to be prepared, executed, issued *127and deposited with Morris & Go. before the delivery by Morris & Go. of LeBron’s deed to Pickering. That deed being then in escrow, importing a warranty of title, and imposing a duty on LeBron and associates to acquire the outstanding titles of McClellan and Scheerer and Allen to parts of or interest in the land,and by the act of acquisition vesting these titles in Pickering, there was no obstacle to the execution by the corporation of the mortgage on the land to secure the bonds before any title passed into it, especially since Pickering had already conveyed all the land to the corporation, and all interests, whether in LeBron or Allen or McClellan and Scheerer, would im: mediately, upon the delivery of LeBron’s deed out of escrow and his contemporaneous or subsequent acquisition of the titles of McClellan and Scheerer and Allen, have passed through Pickering and through the corporation into the trustee in the mortgage to secure the bonds. Certainly the bonds, as we have seen, were to be delivered in escrow before any conveyance by LeBron and associates was to be made, and presumably they were the bonds required by the contract, that is, bonds then secured by a mortgage on the land and railway; so that it may well be said that the contract itself provides for the execution of a mortgage before there had been any conveyance to Pickering ; and that such was the understanding of the parties, and especially of Pickering, for whom this check was deposited, is further evidenced by the fact, above adverted to, that he, after the execution and delivery in escrow of the deed by LeBron, and while it was in escrow awaiting the performance of the conditions upon which it was to be delivered to him, “executed a deed to the 232 acres to the Cloverdale Land & Development Company, on a recited consideration of payment to LeBron of $100,000, and 1617 sharesrof the stock of said company; and he delivered said deed to the Cloverdale Land & Development Company.” So, it seems clear that the fact that the title to the land was not in LeBron and associates even up to the time the bonds should have been deposited with Morris & Co. was not regarded by either of the parties as presenting, and did not indeed present, any practical difficulty in the way of fully consummating the- purchase of and payment for the land in accordance with the terms of the contract. The bonds were never deposited. At the *128time they should have been titles to every interest in the two hundred and thirty-two acres of land were deposited in escrow with Morris & Co.; to whom the bonds were to be delivered. There must have been some object in view in thus providing that the purchase price of the land should be delivered to the parties to whom all the deeds had been delivered in escrow; and it is fairly inferable that this object was that LeBron with the means supplied him by the delivery of these bonds should at once have complied with the conditions of the escrow of McClellan and Scheerer’s and Allen’s deeds to him,by delivering to the former the $48,-000 of bonds they were to receive, and by raising through a hypothecation of the remaining bonds the $10,000 which Allen was to receive, and paying that sum to him, and thus securing the final delivery of those deeds to himself, whereby perfect title to all the land would upon the moment have passed to Pickering. This is probable, but whether so or not is of no consequence. Aside from speculations of this sort, and conceding that Pickering was then to be vested with indefeasible title to all the land and all interests in it, he could not set up the fact of the outstanding titles to relieve him from his obligation to deposit the bonds intended as payment for the land at that time as he had agreed to do. He cannot say, I will not deposit the bonds because you cannot make a good title, for non constat but that the moment he does deposit them the vendor will be in á position to execute and pass to him a title in fee simple absolute to all the lands. The law goes on the presumption that the vendor will perform his contract when the condition upon which he is called upon to act comes into being, though he may be unable to perform a moment before. It presumes that when one undertakes to convey a good title to land upon the payment in the way here stipulated of the agreed price, he will convey such title upon such .payment, though it may appear that up to the moment when payment is to be made, he is without ability to comply with his undertaking.—Pate v. McConnell, 106 Ala. 449. In this case there was full and perfect title to all the land in escrow with Morris & Co. to whom the bonds were to be delivered ; the delivery of the bonds was a condition precedent to the final passing of that title to the purchaser. If Pickering had a right to demand a perfect *129title, and not merely a warranty deed of LeBron and associates, it is to be assumed that Morris & Co. would not have delivered the bonds to LeBron until he was in a position to make such title, or would at least have so delivered them as to have placed him in that position through an application of them, directly or indirectly, to the satisfaction of the conditions upon which the deeds of McClell an and Scheerer and Allen to LeBron were held in escrow by Morris & Co. So that we are now to assume that had Pickering deposited the bonds he would at once have received a conveyance of perfect title to all the lands ; and from tills follows our conclusion, that his failure to buy and pay for the lands according to the contract was not superinduced, justified or excused by any alleged or supposed inability on the part of LeBron and associates to perform the obligations resting upon them in respect of the title to the land.
But, it is further contended that LeBron and associates failed to comply with the requirements of section (5 of the contract, and in consequence of such failure it ceased to be binding upon Pickering, and he was no longer under any obligation to purchase and pay for the land, &c., &c. That section is in the following terms: “It is further understood and agreed that the said A. W. LeBron and his associates shall subscribe for at least thirty thousand ($30,000) dollars of the bonds to be issued by said corporation formed and organized in fur-theianceof this agreement, and for the purpose of the improvement and development of the said lands, and for the construction and operation of an electrical street railway ; and that a list of the subscribers to said bonds be deposited with Josiah Morris & Oo. within the next ten (10) days. The bonds so subscribed for by said A. W. LeBron and associates to be sold to him and the subscribers therefor at eighty (80) cents on the dollar; but said bonds are not to be delivered to said subscribers, nor paid for by them, until after the completion of said electrical street railway.” The only other reference to this subscription matter in the contract is contained in paragraph 7, which is set out first above, where it is provided that $800 of the $1,000 deposit — the other $200 having previously been deposited — “is to be deposited with Josiah Morris & Co. upon the deposit with.said Josiah Morris & Co. by said A. W. LeBron of a list *130of solvent subscribers to said bonds as required and stipulated for by tlie sixth article of this agreement, and to the satisfaction of said F. B. Pickering.” Thirty thous- and dollars in face value of the bonds were subscribed for by LeBron and his associates, and a list of the subscribers setting forth the amount for which each subscribed was duly deposited with Morris & Co. But it appears from the agreed facts that LeBron and Dexter, who was one of his associates, who respectively subscribed for $12,000 and $5,000 of the $30,000 worth of bonds, were insolvent; and upon this is based the insistence that Le Bron and associates had failed to comply with this stipulation and had thereby released Pickering from buying the land, &c. There are several answers to this contention. In the first place, article 6, which alone requires this subscription, does not in terms require the solvency of the subscribers, but it does in terms specifically require that LeBron and his associates shall be the subscribers, and the fact is that LeBron and Dexter, one of his recognized associates, are the only insolvent subscribers on the list. It is clear, we think, that Pickering could raise no objection to the list on account of the insolvency of the parties whom he had thus required to become, and agreed to take as, subscribers. In the next place, he did not in fact raise any such objection at the time for it to have been made, if ever, or indeed at any time so far as we are informed. To the contrary,it is made to affirmatively appear in the case that he approved the list thus made and deposited with Morris & Co., and this in the exercise of the power of approval given by the contract itself, as shown above : the statement of facts sets forth that this list “was satisfactory to and approved by F. B. Pickering.” And, in the third place, the depositing with Morris & Co. of a list of subscribers in accordance with the requirements of the contract was made a condition precedent to the depositing of $800 of the $1,000 which Pickering was to put up to secure his performance of the contract. A list was deposited, and thereupon the whole of the $1,000 was deposited. This in itself was an approval of the list in all respects and a waiver of all objections to it.
It is shown that LeBron and associates organized a corporation to build an electrical street railway, secured certain franchises therefor from the city of Montgomery, *131and transferred and assigned all the property and franchises of said corporation to the Cloverdale Land & Development Company according to the contract, as modified in this respect by a direction of Pickering for an assignment to that company instead of to himself; and that LeBron in all other respects complied with the terms of said contract.
The failure of Pickering to purchase and pay for the land was, our conclusion is, such breach of the contract as worked a forfeiture of the check to LeBron and associates, un'ess the breach was waived by them. The only circumstance relied on as constituting a waiver is, that LeBron,.as president of the Cloverdale Land & Development Company, being empowered and directed thereto by the directors of that company, accepted for the company a conveyance of the McClellan and Scheerer land, and as such president executed to them the contract and agreement of that company to pay the purchase price therefor in a certain specified way. It is true that ever after this transaction it -was out of the power of LeBron and associates to acquire that land and convey it to that corporation as was contemplated in the contract between him and Pickering. But Pickering’s breach of the contract was prior to this, and McClellan and Scheerer withdrew from the original arrangement and took their deed out of escow before-this, because of such previous breach on the part of Pickering. And, moreover, LeBron’s connection wiljh this subsequent matter between McClellan and Scheerer and the Cloverdale Company was merely that of an officer of that corporation, doing ministerially the bidding of its governing body, as in duty bound, and his acts in this capacity cannot be set up as a waiver by himself and associates of individual rights already fully perfected and vested by Pickering’s default.
No different conclusion would be reached were we to hold, as we do not, that failure on the part of Pickering and his assigns to build the street sailway according to the terms of the contract was a cumulative condition precedent to plaintiff’s right to the check, for we do not find that this obligation was ever waived and it is made clearly to appear that it was never discharged ; the road had not been built even at the time of the trial below.
Reversed and remanded.