Morrill v. Richardson

¶1afterward drew up the opinion of the Court. The plea in bar is manifestly defective in substance, as well as in form. There is no averment of the performance of a material part of the condition ; nor any sufficient excuse alleged for the non-performance.

¶2The substance of the condition is, that the defendant with Boies and Chickering, as assignees of the goods and estate of Eliakim Morrill, an insolvent debtor, should sell and dispose of the goods and estate, and distribute the proceeds among the several creditors who had become parties to the assignment, in proportion to their several claims.

¶3The plea alleges, that the defendant and the other assignees named in the condition, did well and faithfully dispose of the goods, effects and estate assigned to them ; but it is not averred that the proceeds have been distributed among the creditors according to the condition ; on the contrary, it is implicitly admitted that no such distribution has been made. The excuse alleged for the non-performance of the condition in this particular is, that the creditors, if any, entitled' to a proportional distribution of the proceeds, had not exhibited and proved their claims before the assignees or commissioners in such manner as that they could liquidate the same, and make the proportional distribution. This is a material part of the plea, and it is both uncertain and defective ; uncertain, because it does not admit that there were any creditors except the assignees, enti*87tied to distribution ; and defective, because there is no averment that the assignees were ready to receive and liquidate the claims of the creditors, and to make the distribution.

¶4Where the concurrence of both parties becomes necessary for the performance of a condition, the party who attempts to excuse the non-performance, in pleading, must allege that he lias done, or was ready to do, all that he was bound to do on his part; or that he was discharged from the performance by the other party.1 The defendant therefore ought to have averred that the assignees had been ready and willing to receive the claims of the other creditors, and to liquidate the same; that á meeting or meetings of the assignees for this purpose had been appointed ; and that notice of the time and place of meeting had been duly given to the creditors. The first act was to be done by the assignees ; for the creditors could not prove their claims before them, unless they were together to receive the proof; nor could the creditors know when and where to present their claims for liquidation, unless some notice was given of the time and place appointed by the assignees for this purpose. So that no good reason is alleged for the non-performance of the condition. For aught that appears to the contrary, it was owing to the neglect of the defendant, and therefore the plea in bar is clearly insufficient.