The plaintiff declared under section 9 of the act of 1848, incorporating the Cape Fear and Deep River Navigation Company, to recover the balance due on the following subscription:
"We, the subscribers, promise to pay the amount annexed to our names, provided that the suits now pending in Moore Court of Equity are decided in our favor, and that it is understood that we pay no installment or money for the opening of the river until these suits are decided in our favor. February 28, 1849.
"George Wilcox ............................................. $750."
The suit referred to was compromised by the defendant's paying the cost and some money, and taking a release and deed of quitclaim from Williams, his adversary in that suit. Nothing was ever paid by the defendant on his subscription, but, after the last assessment on the stock subscribed was made, to wit, 20 January, 1853, the defendant's stock was regularly sold on 9 May, 1854, in strict pursuance of the section of the charter above referred to. Under this state of things the judge instructed the jury that the plaintiff was entitled to recover. Defendant excepted.
Verdict for plaintiff, from which defendant appealed. One who prevents the performance of a condition, (482) or makes it impossible by his own act, shall not take advantage of the nonperformance. Lord Coke illustrates the rule by this case: "If A. be bound to B. that J. S. shall marry Jane G. upon such a day, and before the day B. marry with Jane, he shall not take advantage of the bond, for that he himself is the means that the condition could not be performed, and this is regularly true in all cases." Co. Lit., 20b. *Page 372
In our case the defendant, by compromising the suits and acquiring the right of Williams by means of his release, made the condition impossible, and, according to the rule, cannot take advantage of its nonperformance in order to defeat his subscription.
This action is not barred by the statute of limitations, for a sale of the stock was made within less than three years after the assessment, and this action for the balance after deducting the proceeds of the sale, was commenced within less than three years after the sale, at which time the balance due was ascertained and the cause of action for the balance accrued.
Admit that the remedy given by the statute is cumulative, and that the plaintiff might have brought an action of assumpsit at common law for the amount assessed, and that the common-law action was barred by the statute of limitations when the writ in this case issued, the remedy given by the statute embraces not simply a sale of the stock, but also an action for the balance, and as the election to pursue the statute remedy was made within three years after the assessment, no question can be made as to its not being in time; and, being commenced in time by a sale, the other branch of the remedy, to wit, an action for the balance, was not barred until three years after the sale, because that right of action did not accrue until the sale. There is
PER CURIAM. No error.
Cited: Harris v. Wright, 118 N.C. 424; Harwood v. Shoe, 141 N.C. 163;Whitlock v. Lumber Co., 145 N.C. 125.
(483)