Lloyd v. Bull 1 Day 173

Lloyd v. Bull.

1803.

In tile Court ceiow,

Thomas Lloyd, Jun. Petitioner; Michael Bum and Thomas Bull, Respondents.

U;.d;-r an fuV purl vn.aoo acres Wcst-m Re-scrve land« Agives his notes, payable at dif-then'future! t;:r i!le Pur‘ chase money; B. gives bonds to draw for the iaTKi w;th the Company, and to b.-!d the tract drawn, and, at ;l -pi-dfied pf-A. pre-the notes, to to him ljl>sa part < f the monev, hut not die" cJnny's Se hualtiC.upon a contract, that C. -¡houM rel'me drawing1; A. wnh notice of a,VoeC'enSrs into a contract with C. the object of which is to save C. upon certain conditions, from the obligation of reconveying to B. C. though he tails to perform the conditions in his contract with A. neglects to reconvey to B. and B. tieg/eeufo draw ; held that A. is not emitted to relief in chancery against the notes.

T. HIS was a petition in chancer;/, brought to the Superior Court, in February, 1.799. the prayer of which was, that certain sums of monev, which the petitioner had pajdto the respondents, should be refunded, and that certain promissory notes, winch he had executed to them, should be cancelled.

The facts, stated in the petition and answer, and found by the Court, are — That on the 20th of Februarv, 1796, J it was agreed between the petitioner and the respond- , , ,,, , , ,, „ * ents, that the latter should sell and convey to the former 150,000 tweU e hundred thousandth parts of the Connect-1 icut Western Reserve, at the price of g 30,000 ; that the * • ... i . ⅛ _ , petitioner should pay to the respondents & 3,000, on the 1st of January, 1797 ; that within six months, he should procure satisfactory security for the payment of ⅞ 12,000, on the 2d of September, 1800, and the interest, annually, from the 2d of September, 1797 ; that he should pay 1 r • the remaining sum oí S 15,000, on the 2d of Novem-her, 1800 ; that the respondents should hold the land, in their hands, for his benefit, until the last mentioned sum should be actually paid; that they should, whenever partition should be made of the Western Reserve, in their own names, but for the sole use and bene ft of the . . petitioner, draw lor the said proportion of land, accor•ding to the mode pointed out, by the Connecticut Land *174Company ; that they should, at his request, convey the same to him, when said conditions should be performed ; and that he should pay all the taxes, which should be assessed thereon.

It was also stated and found, that on the 5th of May, i 796, the petitioner, in pursuance of his part of the agreement, executed his note to the* respondents for 8 12,000, payable on the 2d of September, 1800, and three other notes for $ 720 each, for the interest, payable as the interest would become due, and procured Oliver Phelps Esq. who was approved of by the respondents, to guaranty the payments ; and that on the 1st of January, 1707, the: petitioner paid to the respondents 8 3,000, and after-wards paid 8 350 for taxes, assessed on said land, which was placed to the credit thereof, in the books of said Land Company,

It also appeared, that on the 3d of October, 1797, the respondents, with James Bull as surety, executed three bonds, all of the sam é tenour, in the penal sum of S 30,000 each, to the petitioner, binding the respondents, upon the petitioner’s performing the agreement as before stated, on his part, to perform the same, on their part; but that, before the execution of those bonds, they had, without the knowledge of the petitioner, transferred to Ephraim Root, Jonathan Woodward, and John Bishop, for the benefit of said Bishop, 12,640 twelve hundred thousandth parts of said Western Reserve, upon a contract between the respondents and Bishop, that he should, transfer to the respondents the same quantity of land, on * or before the 26th of November, 1/97", — or, in case the Land Company should make partition before that time, within ten days before such partition should be made, in order that the respondents might draw for 15,00Q twelve *175hundred thousandth parts of the Western Reserve, in pursuance of tlreir contract with the petitioner.

It was also found by the Court, that on the 15th of February, 1798, the petitioner, well knowing that the respondents had made said transfer to Bishop, in order to ame Bishop from the necessity. and obligation of transferring said land to the respondents in pursuance of his contract with them, entered into a written contract with Bishop, in which it was stipulated, after counting upon the bonds executed by the respondents to the petitioner, and the notes executed by the petitioner to the respondents, that if Bishop should, on or before the 26th of May, 1798, discharge to the respondents, and exonerate the petitioner from 8 10,128, parcel of the note for 812,000, and 8607 4, on each of. the other three notes, — and either give the petitioner satisfactory security, on or before the 26th July, 1798, to pay to the petitioner 8 5,064, on the 2d of September, 1800, with interest annually from the 2d of September, 1797, until paid, or pay to the petitioner §2,532, on or before the 26th of July, 1798,— and pay to the petitioner, on or before the 26th of J illy, 1798, so much of the taxes, which the petitioner had paid, as is in the proportion of 12,660 to 15,000 ; — then Bishop should he entitled t.o receive and take benefit of the aforesaid three bonds, in the proportion of 8 12,660 to 2,34-0, and the petitioner would accordingly assign to Bishop such proportion thereof. Bishop then covenanted, on his part, that he would comply with and perform all the foregoing conditions ; or, would, on or before the 26th of July, 1798, pay to the petitioner 81,440, and convey to the respondents 12,660 twelve hundred thousandths of the undivided part of the Western Reserve, and also so much of die divided part, as is, upon an average of all the drafts, equal to 12,660 twelve hundred *176thousandths thereof, Ephraim Root Esq. and Wiliiani Shepard, jun. being the judges of such average. Appended to this contract there Was a further agreement, to this effect: That if Bishop should cancel to the respondents the proportion before mentioned, on the four notes, (which would be S 11,951) and should then choose to return the land, the petitioner would, upon Bishop’s paying ⅛ "9 more, make satisfactory security to the respondents, or to Bishops for the sums so cancelled.

The Court further found, that partition of the Western Reserve lands wal* made on the 23d, 24th, and 25th of January, 1798 ; that the respondents having transferred 12,640 twelve hundred thousandths to Bishop, the remainder of the 15,000 twelve hundred thousandths only was drawn for, by the respondents 5 that they had no other shares in said land, and by the books of the Company it appeared, that they had no right to make any other drafts in said partition ; that the petitioner did not make payment of the sum stipulated tobe paid for said lands, and mentioned in the bonds, by the 2d of November, 1800, nor hath he since paid the same 5 that Bishop did not perform his agreement with the petitioner ; and that the respondents, on the 1st of November, 1800, offered to convey to the petitioner 15,000 twelve hundred thousandth parts of the Western Reserve lands, on the petitioner’s making to the respondents,the payments, and performing the stipulations, on the part of the petitioner first to be performed, and still stand ready, and offer, to do the same.

The Court thereupon gave judgment, that the petitioner take nothing by his petition.

The general error was assigned*

*177Ethvarch, (of New-Haven) and Terry, for the plaintiff.

1. Thu petitioner is entitled to relief. The Built, by not drawing for the land, at the time of partition, have broken du-ir contract, at law. As soon as the drawing-had passed bv, Lloyd might have brought his suits upon the bonds. There was a present breach, and he was entitled to an immediate remedy. (a) Further, the Built agreed to draw, and hold in trust for Lloyd; there was, therefore, a breach, in not holding, and this a breach of 'trust, which affords a distinct ground of relief.

2. The remedy prayed for is the proper one. Adequate remedy can be had cnly'in chancery. The contract was for the purchase of land. A party has a right to the specific thing contracted for ; but the Bulls, in tliin case, have disabled themselves to perform specifically. The contract, therefore, ought to be rescinded as to both parties. (b) It would be worse than futile, to compel Lloyd to pay the money on the notes, only that he might recover it back in a suit on the bonds.

Goodrich, (of Hartford) and Dwight, for the defendants.

1. If the petitioner has merits, he has complete reme-dv at law, as he holds three bonds, executed by the Bulls, amounting to S 90,000, in which the whole contract between him and them is set forth, and which were taken, by him, for the v ery purpose of enforcing a perlorm-*178ancc of that contract, on the part of the Bulls. The biune acta or omissions, which are a breach of the contract, are also a breach of the bonds.

2. There has been no breach of tice contract. No particular lands were specified by the parties. Lloyd contracted only for a certain proportion of the Western Reserve. The Bulls might buy lands to fulfil their agreement ; and if, when the specified period arrived, they transferred, or offered to transfer, it was a substantial performance.

Further, the conduct of Lloyd shews clearly, that he did not consider either the transfer by the Bulls to Bishop, or their neglect to draw, as a breach of the contract. From the record it appears, that Bishop contracted with the Bulls to return the land, before the time of partition; that this was known to Lloyd; and that Lloyd afterwards entered into a contract with Bishop, the object of which was, to save Bishop from, the necessity, and obligation of returning the land. That this was the motive, which induced the parties to make the contract, is evident, as well from the contract itself, as from the finding of the Court.

Again, Lloyd contracted with Bishop to sell him the benefit of his contract with the Bulls, so far as it respected the amount of land, which the Bulls had transferred to Bishop, (c) This implies, that Lloyd's contract with the Bulls was not discharged, by the failure to draw; for it was three xveeks after the partition.

*179Again, the contract was, that Bishop should exonerate Lloyd from a certain proportion of his payments to the Bulls. Now, if, by failing to draw, Lloyd was discharged from his contract, wh\ does he contract with Bishop to take him off with the Bulls ? •

But, further, Bishop was to be discharged from his engagements in the contract, upon paying Lloyd g 1,440 and returning to the Bulls the same quantity of land., whkn they had conveyed to him, on or before the 26th of JV , 1798. Lloyd here authorized Bishop, for a premium, to reconvey six months after thé dreneinsr. He also fix-* d upon the quality of the kind to be returned, and named referees to judge whether it was equal to the standard. Is not this, at least, an implied agreement rear to take advantage of the failure to draw?

Further, in the subjoined clause to the contract, Uoyd expressiy convenants, that, in case Bishop should, agreeably to one part of his agreement, cancel certain sums on Lloyd's notes to the Bulls, and then should choose to return the land, (by July, 1798) Lloyd would, upon Bishop’s paying him g 79 more, make satisfactory security, either to the Bulls, or to Bishop, for the sums so can-celled. ; :

Finally, Lloyd may now sue Bishop on the cot enants in the contract. If he should, Bishop may compel Lloyd to convey. If so, how can the Court rescind the con* tract between Lloyd and the Bulls' ?

The Counsel for the plaintiff, in reply, urged, that the Bulls could not avail themselves of the contract between Lloyd and Bis,hop. They were neither privies nor parties

*180Again, the contract with Bishop was made after the Bulls had disabled themselves to perform. Lloyd’s equity had attached. If available in any wav, i.t must, then, be, as a release of the right action. If it was a release, the Bulls, being strangers-to it, could not take advantage of it.

The offer to convey, made by the Bulls, in November, 1800, was long after the date of the petition. lie-, sides, thev could not convey the same land, which they liad agreed to convey; for the}-had not drawn. Nor does it appear, that they had any title. The offer to com vey, was, therefore, a day too soon.