
    Julia I. Kirtz, as Administratrix, etc., Resp’t, v. Hezekiah Peck, App’lt.
    
      (Court of Appeals,
    
    
      Filed April 16, 1889.)
    
    1. Appeal—When finding of fact conclusive.
    Where neither party asked to go to the jury, upon any question of fact, Held, that if the evidence presented any such question, the court was authorized to find thereon, and if there was evidence to sustain the finding, it is conclusive upon the parties on appeal.
    2. Practice—Waiver of right to go to jury on question of fact.
    By requesting the court to determine the case as one of law, a party waives lfis right to go to the jury upon questions of fact, and submits all-questions involved to the determination of the court.
    3. Contract—Mutual covenants—When performance precedent to
    right of action.
    It is well settled that where covenants between parties are mutual and both parties are to perform at the same time, the covenants operate as mutual conditions, and neither can maintain an action until he has performed or tendered a performance of his part of the agreement; but where, it appears from the terms of the agreement or the nature of the case, that, the things to be done were not intended to be concurrent acts, but the performance of one party was to precede that of the other, then he who basto do the first act may be sued although nothing has been done or offered, to be done by the other party.
    4. Action—Por purchase-price of land—When failure of consider-
    ation NO DEFENSE.
    So long as the purchaser of lands remains in possession under his deeds, he has no defense to an action for the purchase-price; the law requires either the surrender of the possession of the land or proof of an eviction therefrom before permitting the defense of failure of consideration to prevail.
    Appeal from a judgment of supreme court, general term, fifth department, affirming, a judgment entered upon a verdict directed by the court at Monroe circuit, in favor of the' plaintiff, and from an order denying a motion for a new trial.
    
      J. M. Dunning, for app’lt; J. D. Decker, for resp’t.
    
      
       Affirming 10 N. Y. State Rep., 796.
    
   Ruger, Ch. J.

—Upon a trial at circuit, after evidence given on both sides, the court directed a verdict for the plaintiff. The defendant requested a verdict to be ordered in his favor, and the plaintiff made a similar demand on her behalf. The court granted plaintiff’s request and denied that of defendant, and the case comes here upon the exception to the ruling of the court.

Neither party asked to go to the jury upon any question of fact, and if, therefore, the evidence presented any such question, the court was authorized, by the mode in which the case was tried, to find thereon, and if there was evidence to sustain the finding, it is conclusive upon the parties on this appeal. By requesting the court to determine the case as one of law, the party waived his right, if any to ,go to the jury upon questions of fact, and submitted ah questions involved to .the determination of the court.

The action was originally brought by Jane A. Bush, the payee of a promissory note for $1,500, dated May 27, 1875, and payable March 1, 1876, with interest. The original plaintiff died and the action was revived in the name of her administratrix. The defense set up by the answer was :an agreement between the parties made on the 19th day of May, 1875, reciting that the defendant had theretofore purchased a farm of the plaintiff’s intestate and her husband, and was unable to obtain possession thereof, and that in order to avoid trouble, vexation and delay, the defendant had compromised the dispute at the sum of $1,500, which was the same money mentioned in the complaint, and that it was agreed that the plaintiff in consideration of said $1,500, to be paid, would execute and deliver to said defendant a quit claim, release and discharge of the said ■defendant from all claims whatsoever, and all interest in .said premises theretofore conveyed by her and her husband to the defendant; “that said $1,500 was not to be paid to said plaintiff until said Jane A. Bush and her husband should execute and deliver to said defendant a release and discharge of-said Peck from all claims, dues and demands which they or either of them have or had against said derdefendant,” and that said plaintiff had neglected and refused to execute and deliver such release or discharge. Other defenses were also set up by way of counterclaim, but, as they were unproved on the trial, they present no •question on this appeal.

The defense presented by the answer was, therefore, the non-performance by the plaintiff’s intestate of a, covenant made by the contract a condition precedent to the payment of the note, and a refusal- to execute and deliver a quitclaim and release of her interest in the land which was the -subject of the agreement. These defenses were wholly unproved on the trial. The defendant did, however, put in ■evidence a sealed written agreement between himself, as party of the first part, and plaintiff’s intestate, of the second part, dated May 19, 1875, whereby it was agreed “That the •said party of the second part, for and in consideration of the sum of $1,500 to her in hand paid, in manner as hereinafter stated, does hereby agree to release, quit claim and set over unto the party of the first part, all her right, title ■and interest in the premises heretofore conveyed by the party of the second part and her husband to the party of the first part; the party of the first part does hereby agrée ■that the party of the second -part may remain in possession •of the house in which she now lives, and to have the use- of the garden connected with said house until the first day of April next, at which time the party of the second part does hereby agree to surrender said premises to the party of the first part; and it is also agreed by and between the parties to this agreement, that the party of the first part is to take possession of all of said premises with the exception of the house and garden aforesaid, and the party of the first part is to have all the spring crops that have been sown and put in on said premises; the party of the second part does also-agree to procure her husband’s release, if any he has, to said premises. It is understood and agreed *. * * that-when the party of the first part shall pay the said $1,500 as-aforesaid, the party of the second part and her husband, shall release and discharge the party of the first part from, all claims, dues and demands which they or either of them have against the party of the first part.” The defendant proved that the note and contract were executed at the same time.

The defendant also put in evidence two certain warranty • deeds, dated October 29, 1872, from the plaintiff’s intestate- and her husband, purporting to convey in fee certain lands-in the town of Parma, Monroe county, to the defendant,, being the land referred to in the contract. It will be seen that the agreement proved different in all material respects from that set up in the answer. The contract proved, neither provided for a condition precedent to the payment of the consideration for the purchase of the land, or for the execution and delivery by the plaintiff to the defendant, of a quit-claim, release and discharge of her interest in the lands. The contract shows a present executed release of such interest.

Upon this evidence the defendant now makes the point-that the note sued on and the agreement constituted parts of the same contract, and that the obligations respectively assumed thereby were mutual and dependent; and that no> action can be maintained by the plaintiff without showing' performance, or an offer to perform, on her part. This defense was not set up by the answer, neither do we think it was maintainable, if it had been. The law is undoubtedly well settled that where the covenants between the parties are mutual, and both parties are to perform at the same time, the covenants operate as mutual conditions, and neither can maintain an action until he has performed or tendered a performance of his part of the agreement. But where it appears from the terms of the agreement, or the nature of the case, that the things to be done were not intended to be concurrent acts, but the performance of one party was to precede that of the other, then he who has to do the first act may be sued, although nothing has been ■done, or offered to be done, by the other party. Morris v. Sliter, 1 Denio, 59; Williams v. Healey, 3 id., 366.

The determination of the question, therefore, depends upon the construction of the contract. We think the language of this agreement, fairly and reasonably construed, implies that the payment of the money was to precede the •delivery of the release or discharge claimed as a defense. There is no language in the contract providing for any. ■specific time for the delivery of the release and discharge, but it may be required at any time after payment. Its. .language is when the money is paid, the said Jane A. Bush ■and her husband shall release and discharge the party of "the first party from all claims, dues and demands which "they, or either of them, may have against him. Morris v. Sliter (supra). The word “when” is used in the sense, ascribed to it by lexicographers as “at a time after,” and as thus used, the case of Morris v. Sliter (supra) is precisely in point.

The payment of the money is not provided for by the agreement at all, but it is either assumed that it has been ■ ■already paid, or, if not, that it is to be arranged by an independent agreement as hereinafter mentioned; but no such ■arrangement is thereafter specified. The execution of a negotiable note payable to whoever might hold it at maturity, is some evidence that no concurrent performance was intended. The contract does not, in terms, refer to the "note; neither does the note refer to the contract, and it is only by extrinsic evidence that any connection between "them is shown.

The agreement is executed under the hand and seal of the plaintiff’s intestate and purports to be an agreement in prcesenti releasing and quit-claiming all her right, title and ■ interest in the land theretofore conveyed to the defendant, ■and a further covenant to obtain her husband’s release of ■any right to such premises, if any, he has. The latter is a ■ conditional covenant and it nowhere appears that the hus-. hand had, or claimed, any interest in such lands. The covenants were evidently inserted in the agreement as a cautionary measure by way of further assurance, which might or might not be desirable for defendant to possess. The agreement itself contained all that was in fact material for the defendant to have, as it conveyed all interest that the apparent owner of the premises had in the land, and, also, operated as a release of any claims, dues or demands which .she might have against the defendant.

When the ageement was drawn it was evident that it ■contemplated the present payment of the money for it expressed it to be in hand paid, and the substitution of the note was quite obviously an afterthought, "although claimed . to have been delivered at the samé time as the agreement. .And when the note matured, the defendant seemed to have the same view, for he commenced making small payments thereon, which continued for a year, without apparently any objection or claim that he was entitled to a concurrent performance of the obligations.

We are, therefore, of the opinion that the promises were independent and that it was not only unnecessary for the plaintiff to show performance of such covenants to entitle her to maintain an action on the note, but no such defense was set up in the answer and it was, therefore, upon both grounds, properly overruled by the trial court.

The defendant also claims that the consideration of the note has entirely failed. This defense also is not only not set up in the answer, but is entirely unsustained by proof. It was assumed on the trial by all parties that the defendant had taken possession of the lands conveyed as the contract provided, and there is sufficient ground in the case to support such assumption. The contract provided for the surrender of possession of the premises two years before the action was commenced, and no allusion is made in the answer to any breach of the contract in this respect, .although assuming to set up such breaches as constituted a defense. The answer also sets up, as a counterclaim, an indebtedness for rent of the farm for two years and a half previous to the surrender, but none after that time.

The defendant was also sworn on the trial, and made no attempt to show a breach of the contract in respect to the surrender of the premises. Under these circumstances, it •seems that the trial court was justified in assuming the performance of the contract in all respects, except those specifically controverted by the defendant.

Assuming, therefore, the possession of the premises by the defendant under his deeds and the contract, he had acquired such an interest in the lands as would constitute a good consideration for a promise to pay their purchase price. So long as the purchaser of lands remains in possession under his deeds, he has no defense to an action for the purchase price. Thorp v. Keokuk Coal Co., 48 N. Y., 250; McConihe v. Fales, 107 id., 404; Ryerson v. Willis, 81 id., 277; Parkinson v. Sherman, 74 id., 88.

An action on the covenants of his deed or contract will give him all the relief to which he is entitled, but to uphold a defense to his agreement to pay the purchase price enables him to hold the land, discharged of the obligation in consideration of which he acquired it. The law does not tolerate such an injustice, and therefore requires the surrender of the possession of land or proof of an eviction therefrom, before permitting the defense of failure of consideration to prevail.

We are, therefore, of the opinion that the judgment of the courts below should be affirmed, with costs.

All concur.  