59 Mass. 359 - Tasker v. Bartlett — 59 Mass. 359

John T. Tasker & another vs. Bradbury C Bartlett & another. Where the condition of a bond was, that if the obligee, within one year from the date of the bond, should elect to reconvey to the obligor an estate, which the obligor had previously conveyed to the obligee, and should give the obligor notice in writing of such election, then the obligor, within sixty days thereafter, should pay the obligee a certain sum of money, and deliver up to him certain promissory notes, “on tender by him of such conveyance;” and the obligee, within the time specified, having made his election to reconvey, and given the obligor notice in writing, went to the house of the obligor with a deed of conveyance duly executed, but did not tender the same in consequence of being informed by the wife of the obligor, that he was out of the commonwealth, and such obligor was then in fact out of the commonwealth; it was held, that such absence of the obligor was sufficient to excuse the obligee from any further offer of performance on his part; that he was not bound to make inquiry whether the obligor had authorized an agent to act for him in his absence; and that it was the duty of the obligor to appoint an ageut to act for him in his absence, and perform the condition on his part, and to give notice thereof to the obligee. A quitclaim deed from two grantors, signed and sealed by each of them, and signed by their wives, with one seal against both signatures, and concluding, after the clause of release of dower: “ In witness whereof, we the grantors have hereunto set our hands and seals,” is sufficient to bar the dower of the wives. A seal by a wafer, or other tenacious substance, upon which an impression is or may be made, is a valid seal to a deed. This was an action of debt on a bond .executed by the defendants, Bradbury C. Bartlett and Elvinus J. Morrison, to the plaintiffs, John T. Tasker and Daniel N. Pickering, Jr., on the 2d of March, 1849, in a penalty of $7000, and containing the following condition : — “ That whereas the said Tasker and Pickering have, upon the representation of said Bartlett and Morrison, become purchasers' of one undivided portion of certain flats in South Boston, and have advanced large sums of money and become liable by their notes for divers other large sums, without being fully satisfied as to the title of said Bartlett to said flats : Now therefore if said Tasker and Pickering shall, within one year from this date, elect to reconvey to said Bartlett all the property or interest in and to said flats by him this day conveyed to them, and give to the said Bartlett notice of such intention in writing, then if the said Bartlett shall, within sixty days from the end and expiration of said one year, pay to the said Tasker and Pickering eighteen hundred and eighty-one dollars, and deliver up to them the said Tasker and Pickering all their said notes, on tender by them of such reconveyance as aforesaid, then this bond shall be void, otherwise shall remain in full force.” The breach assigned was, that the plaintiffs, within the time mentioned in the condition, elected to reconvey the flats to Bartlett, and gave him notice thereof in writing, and tendered him a deed accordingly; and though the time limited had long since elapsed, the defendant Bartlett had not paid the plaintiffs, or either of them, the said sum of $1881, or any part thereof, but had wholly neglected and refused so to do. The case was tried before Wells, C. J., in the court of common pleas. To prove the breach, the plaintiff called a witness, who testified, that on the 1st of May, 1848, at the request of Pickering, one of the plaintiffs, he accompanied him to the house of the defendant Bartlett, having with him a deed of the flats mentioned in the condition. Upon knocking, a woman came to the door, who said she was the wife of Bartlett, and that her husband was absent in Pennsylvania. No further inquiries were made, and the deed was not shown; but Pickering and the witness went away, upon receiving this information. There was evidence also, that Bartlett was at this time absent in Pennsylvania. The defendant, though inquired of whether he had any evidence on this point, did not offer to prove, that Bartlett left any agent for the transaction of this business during his absence. The defendant objected, that the evidence was insufficient to prove a breach of the condition, for two reasons: — 1st. The plaintiffs, upon ascertaining the absence of Bartlett, should have made a demand upon Morrison, the other defendant. 2d. They should have made known their business to Bartlett’s wife, and tendered the deed to her, and demanded a performance of the condition of the bond of her, as the agent of her husband; if she was not such agent, they should have inquired of her and from other persons, whether Bartlett had left an agent to act for him in this matter, during his absence, and if he had, should have made the tender to such agent. The defendant also objected, that the deed was insufficient, inasmuch as it purported to be signed by four persons, and upon inspection, appeared to have but three seals affixed. There was no evidence to explain or account for this circumstance. The deed was a deed of quitclaim, and signed by the two plaintiffs, against each of whose names there was a seal, and by their wives, against both of whose names there was but one seal, which was of paper with an impression upon it, apparently spread with gum on its under side, and affixed to the deed by moistening the gum, without the addition of any wafer or wax. The deed, after the clause of release of dower, concluded: “ In witness whereof we the grantors have hereunto set our hands and seals,” &c. The original deed was made a part of the bill of exceptions. The presiding judge instructed the jury, that in the absence of any proof, the deed was to be taken to be the deed of the four persons who signed it, and was therefore sufficient; that if the plaintiffs caused a sufficient deed to be executed and went with it to the house of the defendant Bartlett, for the purpose of delivering the same, provided Bartlett would perform the condition to be performed on his part, and were told that he was absent from the commonwealth, and he was so in fact, then nothing more was incumbent on the plaintiffs to make out a primd facie case; that if the wife of Bartlett, or any other person, was authorized and prepared to perform on his part, it was incumbent on the defendants to prove such authority, and the question would then arise, upon such evidence as might be introduced, whether the plaintiffs were bound to know of the existence of such agent, and to make a demand upon him; that it was not necessary to make a demand upon the other defendant; and that it was not necessary to tender the deed at the house of Bartlett, at the time Pickering and the witness were there. The jury returned a verdict for the plaintiffs, and the defendants alleged exceptions. B. F. Hallett, for the defendants, cited, to the point of the tender of the deed, Swan v. Drury, 22 Pick. 485; Frazier v. Cushman, 12 Mass. 277; Borden v. Borden, 5 Mass. 67; and to show that the deed was insufficient, Warren v. Lynch, 5 Johns. 239; Jackson v. Wood, 12 Johns. 73; Bradford v. Randall, 5 Pick. 496; Lufkin v. Curtis, 13 Mass. 223. J?. JRantoul, Jr., for the plaintiffs. — Wilde, J. (majority) Wilde, J. This case comes before us on exceptions to the rulings of the judge of the court of common pleas, at the trial, and the only question to be decided is, whether the rulings were correct. On the argument of the exceptions, it was objected by the defendants’ counsel, that it does not appear by the report of the case, that the plaintiffs did elect to reconvey the land described in the bond within one year from its date, as they had a right to do, by the terms of the condition. .But on this point, no evidence is reported, nor is any question raised. It is manifest, however, that such election was proved or admitted at the trial, or the plaintiffs must have been nonsuited; for without such election, there could be no proof of a breach of the condition of the bond, and the questions now to be considered could not have been raised. The first and principal objection to the ruling of the court below is, that it was ruled, and that the presiding judge so in structed the jury, that the plaintiffs had made out a primd facie case, without tendering to the defendant Bartlett a deed of reconveyance of the premises mentioned in the condition. It is contended, that the tender of such a deed was a condition precedent, without the performance of which no obligation was imposed on the principal defendant. By the terms of the condition, it is manifest that the plaintiffs were not bound to make an unconditional tender, in the technical meaning of a tender. It is a well-settled principle, that in all cases of mutual dependent covenants or contracts, where something is to be done by each party at the same time, neither party is bound to tender an unconditional performance of the contract or covenant on his part; but if either party offers to perform the covenant or contract on his part, provided the other party will perform the contract on his part, and he declines, that is sufficient to support an action against him for the non-performance of his contract by the party making the offer. This principle, however, is not material in the present case; for although something was to be done by each party, at the same time, yet this action cannot be maintained, without proof of an offer made by the plaintiffs to perform their part of the condition, or that they were prevented by the act of the principal defendant. No such offer was made by the plaintiffs, so that the question is, whether their offer of performance was not prevented by the act of the principal defendant. If it was so prevented, it is very clear that the proof of such prevention is equivalent to a tender, or an offer of performance on the part of the plaintiffs. The law is so laid down in Bac. Ab. Condition, 2, and is fully supported by many adjudged cases. So in Gilmore v. Holt, 4 Pick. 258, where the plaintiff to whom money was due designedly evaded a tender, and brought his action so immediately, that a tender could not be made before the commencement of the action, it was held, that this was a sufficient excuse for not making the tender. So it has been frequently decided, that where the maker of a promissory note absconds before the maturity of the note, and cannot be found, no demand is necessary. Putnam v. Sullivan, 4 Mass. 45; Widgery v. Munroe, 6 Mass. 449; Hale v. Burr, 12 Mass. 86, 88. And in Borden v. Borden, 5 Mass. 67, which is a case directly in point, it was decided, that where one was bound to deliver a deed on a day certain, and at the day was ready with the deed, and would have tendered it but for the evasion of the other party, this was equivalent to a tender. It was argued by the defendants’ counsel, that the defendant Bartlett did not absent himself from the commonwealth for the purpose of evading his contract. But this, if so, is not material; the plaintiffs were thereby prevented from making an offer of performance of their part of the condition ; and the defendant had no right to absent himself from the commonwealth without an offer to perform the condition on his part, or leaving an agent to perform it for him. This was not done, and there is no evidence that he ever intended to perform on his part the condition of the bond. He was allowed sixty days to raise the money to be paid, and if raised, there was nothing to prevent him from offering to pay it and to deliver up the notes, before he left the commonwealth. But if not so prepared, he was bound to authorize an agent to act for him, who should be enabled to perform the condition on his part. And if he had appointed any such agent so prepared, it was incumbent on him to prove it, as it was ruled at the trial. We think, also, that he was bound to give notice to the plaintiffs of the appointment of an agent; upon the well-known principle, that where one party has knowledge of a material fact not known to the other party, he is bound to give notice of it. The plaintiffs, therefore, were not bound to make inquiry of any one, whether the principal defendant had authorized an agent to act for him in his absence; and as no agent had been so authorized, the inquiry would have been useless. And so as to the objection to the sufficiency of the deed, which the plaintiffs were prepared to offer; for if it was not sufficient to bar the rights of the plaintiffs’ wives, the defect might have been immediately supplied, and undoubtedly would have been, if the defendant had made the objection now made by his counsel. But as he was not present, and no offer to him could be made, it seems immaterial whether the deed was sufficient or not. But it is not necessary to decide this point, for we are of opinion, that the deed was well executed by the plaintiffs’ wives, and was sufficient to bar their rights of dower in the premises. The objection is, that there is but one seal against the signatures of the wives, and that not such an one as is required by law. Anciently a seal was defined to be an impression on wax; but it has long been held, that a seal by a wafer, or other tenacious substance, upon which an impression is or may be made, is a valid seal; and such is the seal objected to, upon which an impression not only may be, but was, actually made. And it is well settled, that several persons may seal by one seal, and it is manifest that all who signed the instrument of release did add their seals. It was objected, that it did not so appear by the deed, because the clause in the deed, in this respect, included the plaintiffs only; it being “ that we the grantors have hereunto set our hands and seals.” But the word “ grantors ” is not to be understood in its strict technical sense, for this was a deed of release, and the word “ grantors ” was undoubtedly intended to refer to all the persons who signed the deed. Exceptions overruled.