
    
      Henry Dubignon and others, vs. John Loud.
    
    Defendant, in South-Carolina, agreed, March 16, to purohase from plaintiff, in Georgia, real estate in Brunswick, Georgia — the sale to bo consummated by payment and conveyance on plaintiff’s arrival at Brunswick, which he expected would be in a short time. March 29, defendant wrote to plaintiff that his son would call on him with the money in about a week from the receipt of the letter, and that he, defendant, would, if able, call with his son. May 12, defendant wrote to plaintiff that he felt “ compelled to decline the consummation of the purchase,” and that, if his reasons, stated, were not satisfactory, he “ would be willing to pay a reasonable amount in consequence.” A witness testified, thatafter defendant’s letter of May 12, he called on him in South-Carolina, by authority of plaintiff, and “ told him, plaintiff was ready at any moment to make titles; defendant said, he could not take the property.” The Circuit Judge non-suited the plaintiff, holding, that nothing had been shown to exouse the plaintiff from the necessity of a tender of titles. On appeal,
    
      Held, that the evidence should have been submitted to the jury to inquire, whether the conduct of the defendant had not rendered the actual tender of conveyance a nugatory act.
    
      Held, further, that it would seem fit to inquire, Whether Brunswick was not the place stipulated for the performance of all that was to be done, on either side; and if so, Whether the failure of defendant to attend there, in person or by representative, with the avowal of a definitive resolution to repudiate the contract, should not amount to a complete discharge of the plaintiff from the vain act of holding up, in view of no one, a deed of conveyance.
    
      Before O’Neall, J., at Charleston, Spring Term, 1853.
    The report of his Honor, the presiding Judge, is as follows:
    “ This was an action of assumpsit to recover damages on a contract for the sale of a tract of land and mill, and its appurtenances. The facts of the case are stated in 5 Rich. 254, with the exception of the proof which I will now state.
    “ Five letters of the' defendant were given in evidence. The first, 14th February, 1849, proposes to buy; second, 27th February, states, that he had heard it could be bought for $2,000, which sum he would give, payable in a mode therein stated.
    “The third, 16th March, acknowledges his receipt of the plaintiff Dubignon’s letter of the 9th, accepting his proposal.
    
      “ The fourth, 29th March, states, he will send the money for the cash payment by his son, who will call on Dubignon. The fifth, 12th May, states, that from his son’s statement about the property, he declines the purchase, (
      
      .)
    
    
      “ By the proof of Mabry and Davis, the property depreciated after the defendant’s proposal to buy. The plaintiffs sold it finally for $1,200.
    
      “ Mr. Ingraham proved that he saw the defendant in ’49, after he had refused to comply with his contract, at the American Hotel, Charleston. He told him Dubignon was ready at any moment to make titles. Defendant said he could not take the property. The witness acted by the authority of Dubignon alone. He had no titles in his possession, and tendered none. The plaintiffs here closed their case.
    “A motion by the defendant fora non-suit was sustained.
    “ In this case, when before the Court at its last term, it was said in the conclusion of Judge Frost’s opinion — cIt follows from this view of the subject, that the plaintiffs cannot maintain any action against the defendant for non-performance of his contract, without proving on their part performance, or that they were excused from such tender by the conduct of the defendant, and it could make no difference whether the action was brought for the purchase money or for damages,’ (5 Rich. 255.) I thought nothing had now been shown to excuse the plaintiffs from the necessity of a tender of titles.”
    The plaintiffs appealed, and now moved this Court that the non-suit be set aside, on the ground :
    That the letters of defendant, and the testimony of Mr. In-graham, should have been alloived to go to the jury as evidence that a tender of titles was dispensed with by the defendant; and that a tender, under the circumstances, would have been a nugatory act.
    
      Porter, for appellants.
    
      Pressley, contra.
    
      
      (a) The following aro copies of the letters referred to:
      Charleston, Peb. 14,1849.
      Sir: I understand you, with other gentlemen, are the owners of the steam-saw mill in Brunswick; having had considerable conversation with Mr. Parker on the subject, but not agreeing on the terms upon which he would furnish me lumber — he to take charge of the mill, &c., and also, he having written to me, advising me of his having given up the property to the former owners, has induced me to write to you, to ascertain the lowest price and best terms for mill property, and all the lumber, &e., on hand.
      An answer addressed to John Loud, Charleston, S. C., by return of mail, will receive attention from
      
        Yours, respectfully, John Loud.
      Mr. Dubignon, Steam-Saw Mill, Brunswick, Ga.
      Charleston, Deb. 27, 1849.
      Henry Dubignon, Esq.
      Sir: Your favor of the 21st instant was only received Saturday night. In reply, I would state, that within a few days, I had learned, the mill property could be purchased for two thousand dollars.
      As the mill will require considerable repair, and the lumber which I was to have had in the proposed arrangement with Mr. Parker is sold, I will give $2,000 for it — payable 500 cash, and balance in six, twelve and eighteen months, secured by mortgage of property.
      An answer by retan mail will oblige
      Yours, respectfully, John Loud.
      Charleston, March 16, 1849.
      H. Dubignon, Esq.
      Sir: Your favor of the 9th was received by last mail from your place, accepting my offer for the mill property. At the time of receiving it, I was engaged loading some vessels with lumber and timber; one has sailed — another is expected to finish on Monday, and another about Monday week. Immediately thereafter — that is, by first boat for your place afterwards, I calculate to be with you, (unless one of my sons should arrive earlior, and pass through your place on his way to the St. Johns. He is now in WÍ1-mington, on his passage from washington City.) The lumber we are shipping is for Gov’t, and will not admit of delay in forwarding it. upon my arrival in Brunswick, we will consummate the sale by the payment and conveyance, &e.
      
      Respectfully yours, John Loud.
      P. S. — I understand the mill requires new belting; perhaps you could tell me the length and width required, and whether its location (that is, the main belt) is near the boilers, so as to be warm, as otherwise gutta percha would not answer. I might, perhaps, get your answer in time.
      Charleston, March 29, ’49.
      Dear Sir: I had fully contemplated leaving this city in the morning, in order to go
      
        South to see you, for which purpose, though the vessel we are loading has not yet finished, I had made all the arrangements necessary. But this morning, I received a letter from my family in Philadelphia, stating the illness of Mrs. L., so much so, that she was not able to write — having an attack of the varioloid, and that they would telegraph me, if necessary. As her health is otherwise very delicate, I dare not with any propriety leave the city for some days, lest necessity should compel me to go North instead of South. My elder son went by last boat to see his little boy at his grand-father, Capt. Sadler,' on the St. Johns. By a friend going there in the morning, I shall send the money to him for the purpose of his calling on you, which will be on his return, in about a week after you receive this. If able, I shall leave on Monday for the St. Johns, and return with him to your place.
      Regretting alike my disappointment and the cause j but hoping before many days to see you, in haste,
      I remain, yours, very respectfully, John Loud.
      Henry Dubignon, Esq.
      Charleston, May 12, 1849.
      Henry Dubignon, Esq.
      Dear Sir .* By a letter from my son, in which he describes particularly the condition of the steam-mill in Brunswick, with the estimate of the expense attendant for repairs, which, in condition and extent so far overruns any supposed amount which I had previously calculated upon, that I feel compelled to decline the consummation of the purchase, which, I can assure you, is with no little mortification and regret. There were many points about it which made it one, as I supposed, capable, by a reasonable outlay, of accomplishing all I expected or wished — but these outlays, being so hoavy, and the mill not being in operation, showing its dilapidated condition, affords, I trust, even in your estimation, a reasonable cause for the course now pursued. Should the owners a^ainrun the mill within a reasonable time, I would agree to take one or two cargoes of narrow one-inch flooring boards, or one of 1-4 clear wide boards, free of knots or sap. If your price for the same is what Mr. Parker mentioned, viz: $9 or $10 per m j the former it should be.
      If the disappointment in my declining to consummate, and the reasons offered, &c., is not satisfactory, I would be willing to pay a reasonable amount in consequence — but from what I understand your character to be, you would not wish any one to enter into any arrangement which would ensure to him certain loss. An early answer will oblige Yours respectfully, John Loud.
      P. S. — I should have written earlier, but have been extremely unwell.
    
   The opinion of the Court was delivered by

WxtheRs, J.

When this case was before this Court, upon a former occasion, (vide 5 Rich. 251,) the question now presented was not adjudged; nor was the evidence upon which it arises before the jury, 'on‘the first trial. It was said, in the opinion pronounced, as follows: “ This instruction dispensed with the inquiry whether the defendant had waived the tender of a title-deed and discharged the plaintiffs from making it; and so, that issue, with the evidence pertinent to it, was not submitted to the jury.” Upon this inquiry, however, the case turned, on the recent trial (indeed, to test this very question it was remanded,) and a non-suit was ordered, because, it was ruled, as matter of law, that what the defendant had said and done could not be construed into a waiver or discharge of the performance of that condition,to which the judgment of this Court, in the former appeal, held the parties (plaintiffs) obligated.

We must first resort to a condensed abstract of the facts which raise our present question.

The correspondence leading to the agreement to purchase the steam saw mill by defendant, was opened, on his part, the 14th February, 1849, with Dubignon, as owner, with other gentlemen,” of a steam saw mill in Brunswick” (Georgia). Loud, therefore, treated, from the' first, and throughout, with Dubig-non, for the purchase of the property, and had no right to discard anything he did, or offered to do, towards the consummation of the transaction, upon the footing that there were other joint owners or cotenants.

Of course, it is not meant to be intimated that Loud was bound to accept an insufficient conveyance of title, or that he ma.y not avail himself of proof on that subject, from whomsoever it may be proper it should come. We stop not to discuss or inquire whether the plaintiffs must show, on ' trial, a good title, or a perfect title, in law alone, or in law and equity (vide Law vs. House, 2 Hill, 268), or whether evidence on that point must come from the defence (vide Breithaupt vs. Thurmond, 3 Rich. 220); or whether that question will enter into the case at all. What is now said, is intended to refer to the fact reported, that Ingraham assumed to speak in the name of Dubig-non, alone, when he announced, that the latter was ready at any moment to make titles. So far as that fact enters into the question at all, it should not be judicially resolved to mean, that a conveyance by Dubignon, alone, was intended by him, or by Ingraham, while others had also an estate in the subject matter ; or that Loud was so impressed; and especially so, since it does not appear that he took any such ground of objection.

The agreement was consummated, as appears by the letter of Loud, of date March 16, 1849, in which he refers to a time (not fixed with specific exactness as to the day) when he expected — “ calculated,” he says — to visit the vendor, unless one of his sons should do so earlier; and adds, upon my arrival in Brunswick, we will consummate the sale by payment and conveyance, &c.” Part of the purchase money was to be paid in cash, the remainder to be secured by notes. By letter of 29th March, Loud informed Dubignon that his son had proceeded to the St. John’s by the last preceding boat, and that on the next morning (March 30) he would send the money to his son, with a view to his calling on Dubignon, in about a week after receipt of the letter, and added, “ If able, I shall leave, on Monday, for the St. John’s, and return with him to your place.” In the letter of the 12th May. 1849, Loud advised Dubignon that on account of an unexpected weight of expense for repairs, he felt “compelled to decline the consummation of the purchase,” and if the reasons did not appear to excuse him, he would be willing to pay a reasonable amount in consequence.

Such are the facts that make the case at present. No doubt has been expressed that if a deed of conveyance not liable to just objection, had been tendered, here in Charleston, the right of the plaintiffs to go to the jury would have become unquestionable. Our point is, Did that omission, under the circumstances, exclude the plaintiffs, by intendment of law, from going before the jury, upon the rule that in case of mutual, dependent, concurrent conditions, a willingness and readiness to perform, and a prevention thereof by the defendant’s wrong, shall work a dispensation, and be equivalent to the performance of a condition precedent?

A vendor cannot maintain an action for the purchase-money, nor (as we have determined in this case) for damages, when his part of the agreement, unexecuted, is precedent, or concurrent, without an actual performance, on his part, or tender and refusal — without executing and offering a conveyance, where that is his duty, unless the purchaser has discharged him from so doing. Sugden on Vendors, 261; Jones vs. Barkley, Doug. 684 ; Philips vs. Fielding, 2 H. Black. 123; and a vast many cases might be cited in addition.

The difficult question is, What shall be held to work a discharge, or release from the performance of a covenant? It would be dangerous — it would not be practicable — to lay down a rule which should have the virtue of a legal measure or standard. Much technical difficulty was thrown around cases which involved mutual and independent covenants, and strictness exacted of tender by the party who demanded performance by the other. It has been often remembered that a covenant under seal could not be released or discharged by parol, and hence some act in pais was required. This proposition was introduced in the case of Law vs. House, 3 Hill, 268. But Lord Mansfield broke ground, in Jones vs. Barkley, towards the object of placing the issue upon the truth and common sense of the case, of guiding the inquiry of the Court and the jury by principles which accord with the real intention of the parties, and a just interpretation of their acts. He said, The party must show he was ready; but if the other stops him on the ground of an intention not to perform his part, it is not necessary for the first to go further, and do a nugatory act.” This has been followed by cases of the like import in England and America: vide Rawson vs. Johnson, 1 East, 203; Kemble vs. Mills, 39 Eng. C. L. R. 640; Pinkus vs. Hamaker, 11 Serg. and R. 200 ; Hampton vs. Speckenagle, 9 Serg. & 11. 212; and various cases in Meeson & Welsby?s Reports show, that it is held sufficient, upon demurrer, to allege a readiness and willingness to perform, but that the defendant refused to perform his part, and that readiness and willingness imported ability to do it. [Hoc est paratus verificare.) De Medina vs. Norman, 9 Mees. & W. 820 ; Poole vs. Hill, 6 ib. 835, and cases there cited in note by American Editor.

In Jones vs. Barkley it was held nugatory to execute the assignment and release in question, for the other party had absolutely refused to comply with his undertaking. Surely it may be as vain and nugatory, by reason of the conduct of a recus-ant, to observe the idle ceremony of tendering a paper or parchment, as to make any other description of tender. Looking at the matter through the medium of any principle, it would seem to concern only the force of evidence, since a tender, in many cases, and the present appears to be one, would only demonstrate the more clearly that the defendant refused to perform his part, from which (at any rate in a case not affected by agreement under seal) a dispensation or discharge is matter of inference. Perhaps a mere refusal to comply before the time appointed, where one is fixed, should not imply so much, as one might revoke his resolution meantime; while under other circumstances it might imply a waiver, most strongly, and dispense with the duty of the adversary to attend at the time and place, as in the case cited from 9 Serg. & R. 212, Hampton vs. Speckenagle. We think a jury may properly inquire into the element suggested by Lord Mansfield, to wit: whether the conduct of a defendant had rendered the actual tender of conveyance a nugatory act.

It would, moreover, seem fit to inquire in this case whether Brunswick was not the place stipulated for the performance of all that was to be done, on either side; and if so, whether the failure of the defendant to attend there, in person or by representative, with the avowal of a definitive resolution to repudiate the contract, should not amount to a complete discharge of the plaintiffs from the vain act of holding up in view of nobody a deed of conveyance. If it should appear, as argued, that the defendant had an agent at the place and at the time,.it would be a fact for him to be weighed in the scale. That he should tender here in consideration that he sues here, is not a logical or legal deduction from a stipulation to tender there. It is clear enough, that where a party entitled to a tender of money, or other thing, is out of the realm, with no known agent left in his stead, he should suffer the consequences; and the doctrine was practically enforced in our own case of Fannen vs. Beauford, 1 Bay, 235.

We have striven to show, only, that the question of waiver or discharge, by the defendant, of what the plaintiffs should otherwise have done, is one that, from the facts of this case, cannot be resolved, as a conclusion of law, against the plaintiffs; and as there appears to have been error in taking the same from the jury by non-suit ordered, the motion to set it aside is granted.

Wardlaw, Whitner, Glover and Munro, JJ., concurred.

Motion granted.  