
    Haynesworth & Co. v. Adler.
    
      Action of Assumpsit.
    
    1. Contract; conditions precedent must lie performed. — Where a contract requires the performance by one of the parties of certain acts as a condition precedent to the enjoyment of his rights under the contract, such conditions precedent must be strictly and specifically and literally performed, and when there is more than one condition precedent, or such conditions are copulative, and the act to be performed consists of doing several particulars, all of the conditions or all of the several particulars must be performed before any rights under the contract can arise.
    Aitkal from tlie Circuit Court of Jefferson.
    Tried before the Hon. A. A. Coleman.
    The facts of the case are sufficiently stated in the opinion.
    Tiiom. If. Boitli-iac, for appellant. —
    Interest on any indebtedness can be stipulated for by any collateral, or separate undertaking or agreement; and suit may be maintained and collection had of the interest on such separate agreement. — 16 Eney. Law, p. 1000, 1002, 1054; .1fuellar v. McGregor, 28 Ohio St. 365; Andrews v. Campbell, 36 Ohio St. 361; Kelly v. Phoenix Nat. Bank. 17 N. Y. App. Div. 496; Stone v. Bennett, 8 Mo. 41; 11 Ency. PL & Pr. p. 438; Crowder v. Red Mountain Co. . 29 So. Rep. 847; dun v. Mortgage Security Co., 92 Ala. 138; Slickney v. Moore, 108 Ala. 590.
    The maturity and discharge of the principal debt does not destroy the right of action for the interest obligation. — 8 Encyc. Law, (2d ed.) p. 16, v.; Clark v. Iowa City, 20 Wall. 583; 'Walnut v. Wade, 103 TJ. S. 695; Bank v. Hartford R. R. Co., 8 B. I. 375; 91 Am. Dec. 237.
    Where performance of the agreement is caused by the defendant* lie cannot derive any benefit from its nonperformance. — Wvngo r. Hardy, 94 Ala. 191; 2 Parsons on Contr. p. 679; Bisli. on Contr. (Bill, ed.), § 1431; 1 Ad. on Contr. § 326; 5 Law on Rights, Rem. & Prae. § 2510, p. 4155; liorat v. Simpson, 90 Ala. 181; Spray no JJorgan, 7 AÍa. 952; ñl(‘London v. (Hodfrcy, 3 Ala 181.; Eads v. Murphy, 52 Ala. 520.
    Oakanxss & Weakley, contra. —
    The condition compelling them to secure the ore lands at the prices named is a condition precedent, which must- always be strictly, literally performed. — 6 Am. & Eng. Enc. Law, (2d ed. i, 504.
    Even if it were true, as argned by counsel for plaintiffs, that the agreement to purchase the adjoining ore lands was void for indefiniteness, plaintiffs could claim nothing for that reason, because it is a condition precedent; and it is well settled law, that if for any reason a condition precedent is impossible of performance, no riuht or estate can vest. — 6 Am. & Eng. Enc. Law, (2d ed.), 506.
   HARALSON, J.

This suit is by R. F. Hayneswortli and Kate Orman, as partners under the name of Haynes-wortli & Company, against the defendant, Morris Adler, and has reference to a claim of $7,000, by the plaintiffs against the defendant, for interest on certain notes of defendant to them, which notes, as claimed by plaintiff's, according to the transaction out of which they grew, should have borne six per cent interest, whereas, as claimed, by an oversight, they bore no interest from the date they were given until their respective maturities.

The case -was tried upon the 3d and 4th counts of the complaint, demurrers to which were overruled, and on a special replication to pleas 5 and 6, upon which replication issue Avas joined.

The plaintiffs had a lease on 360 acres of mineral lands which ran for about twenty years. The fee in these lands belonged to other parties, and they were referred to in the proceedings as the Hill & Wilson lands. The defendant was proposing to punchase this lease-hold interest of plaintiffs, and the interest of the Hill & Wil-sons in the same, after the termination of said lease. The plaintiffs were offering to sell their lease-hold interest to defendant for the sum of $75,000, a part payable in cash and the balance at different times; and on the 14th of March, 1899, in consideration of $100.00 paid, they sold to defendant an option to buy their lease and lease contracts in said lands, to be expressed within sixteen days, which contract was reduced to writing and signed by the plaintiffs. According to this contract, the cash payment was $20,000, the same amount in sixty days, from the date of the agreement, $12,000 in twelve months, and the same amount in eighteen months, and $11,000 in twenty-four months. This agreement contained no provision for the payment of interest on these deferred payments.

There were other ore lands adjacent to the Hill & Wilson lands, containing some seven hundred and seventy acres, not so valuable for the ores on them, but which the defendant desired to secure an option on to buy, as they were regarded as valuable for purposes connected with the Hill & Wilson lands. These lands are referred to in the proceedings as the Hurst, Burgess & Little lands.

After the option contract referred to between iffain-tiffs and defendant had been entered into, on the 14th of March, 1899, the plaintiffs, as they allege, discovered that it did not contain any provisions for the payment of interest on the deferred payments, and some controversy arose between the parties as to that matter; the plaintiffs contending that these payments, by the terms of the understanding between them and the defendant, should bear 6 per cent interest from the date of the written agreement, and the defendant insisting that the instrument contained their oral agreement, and these deferred payments were not to bear interest. As a result of their respective contentions, the defendant gave to plaintiffs the written agreement sued on and set out in the 4th count of the complaint, which reads as follows: “llussellville, Ain., March 30th, 1880. Mess. 11. F. I la ynesworf h & Co., llussellville, Ala. Gentlemen: If you secure for me the ilill & Wilson land, 3G0 acres, at not exceeding $3(5,000, reasonable terms, and also adjoining ore lands on a similar basis, i. e., taking into con-consideration the value for ore, you receiving live .per cent, commissions either from seller or from me, on the purchase proposed to be made, 1 will insert in the 12, 18 and 24 months notes; six per cent, interest,” — signed by defendant. The. notes were on that date executed in two sets, one set to It. F. Haynesworth, for $12,000, payable at 12 months, $12,000 at eighteen, and $11,000 at twenty-four months, respectively, and Ine other set, with like dates, amounts and dates of payments, respectively, were made payable to Kate Orman. The prices at which the Hill & Wilson, and other lands could be procured, at an option for their sale and the times for the expression of the options, in each case, was not-known. They were to he obtained, if obtainable at all, by the plaintiffs in their own names, at the lowest price procurable and on as extended terms as practicable, for the expression and performance of the options, subject, in each instance, to tin; acceptance or rejection of defendant.

W. A. Orman, the husband and agent of one of the plaintiffs, Mrs. Kate W. Orman, visited Baltimore the home of the Hill & Wilson owners, with the view of procuring from them an option to sell said 360 acres of land. These parties declined to give an option at $36,000, -but did agree to do so at $36,750, and as a condition to agreeing to accept that price, they required the plaintiffs to purchase also, 80 acres more of their lands, — 40 acres at $25.00 per acre, amounting to $1,000, and the other 40 acres at $50.00 per acre,- amounting to $2,000, the two forties aggregating in price $3,000, which when added to the $36,000 for the 360 acres, made, the sum of $39,750, as the best he said, Orman could do, towards securing the desired option on the 360 acres. These conditions were reported to defendant, and.were afterwards accepted and complied with by him.

As for the other lands, called the Hurst, Little & Burgess lands, containing 770 acres, the plaintiffs failed to secure options on them, at prices they would recommend as fair, and, by an understanding between them and defendant, defendant was left to purchase them or not, as he chose to do. He afterwards bought these lands for himself paying therefor, 190,200.

It is not disputed that defendant has paid in full the |39,750, to the Hills and Wilsons for the 440 acres of land they agreed to sell plaintiffs, and that defendant has secured satisfactory titles thereto, nor is it disputed, but admitted, that plaintiffs have received full payment for the sale of their lease-hold interest in said 380 acres according to contract, except, as they contend, as before stated, that defendant owes them the interest at 8 per cent, on said deferred payments.

The case was tried by and before the presiding judge, without the intervention of a jury. lie found for the defendant, and judgment was accordingly entered, to reverse which the appeal is prosecuted.

In the first place it cannot he denied, that plaintiff's failed to procure an option on the Hill & Wilson lands at the price of $36,000; the amount stipulated for their purchase in defendant’s contract with plaintiff's. The amount at which the Hill and Wilsons gave the desired options for the purchase of these lands, including the 80 acres they required to be purchased, as a condition to selling the 360 acres desired, exceeded this amount by $3,750. This was not a complance in terms with the contract to pay interest and the writing must stand as embodying the real contract of the parties, unless it is showu xhat it was afterwards changed or modified by their agreement. The burden of making this appear is upon the plaintiffs.

The evidence most favorable to plaintiff's to support their -contention is, as stated by Haynesworth, that “The notes as drawn and offered to us by Adler, did not contain any stipulation for the payment of interest. As soon as I saw this, I declined to receive the notes, telling Mr. Adler it had been understood and agreed that the notes should bear interest. After some conversation on tlie subject in wbicli I persisted that tlie notes should bear interest, and that it was so understood from tlie beginning,” (wbicli Adler denied), “Mr. Adler wrote off on a piece of paper tbe agreement on wbicli tliis suit is brought, and ashed.Mr. Orman and myself how that would satisfy or suit us. Orman and myself discussed tbe matter awhile, and as it bad already been arranged that Orman was to go on to Baltimore as soon as be could, for tbe purpose of buying out tbe fee of tbe Ilill lieirs, T Anally consented to receive that agreement, and tbe notes, as they bad been prepared, were accepted by us with that agreement.” Orman in bis testimony makes substantially tbe same ,statement. According to tbe evb deuce of both these witnesses, they accepted these notes, as prepared, without any specification for tbe payment, of interest in them, on tbe condition written in tbe agreement sued on, for tbe payment of interest. These were conditions precedent which always must be strictly and literally performed. — 6 Am. & Eng. Encyc. Law, (2d. ed.), 504, and authorities there cited.

It is said, when Ormon was departing for Baltimore, to procure an option, be told tbe defendant be was unwilling to go, if be was to be held down to tbe exact sum of $100.00 an acre for tbe 360 acres,- and that tbe defendant told him to go on and do tbe best be could and not let a few dollars, either more or less, stand in tbe way. Tbe plaintiffs at tbe time of this alleged conversation, bad already accepted tbe contract. Adler, by tbe understanding, was to pay tbe expenses of tbe trip, and tbe plaintiffs bad an interest to make tbe effort to procure tbe option, since, if procured and accepted, they were to receive 5 per cent, commissions on tbe amount at winch it Avas obtained and accepted by defendant, and this, defendant guaranteed. •

Thus far wTe have been considering the condition in tbe contract as to procuring tbe option for tbe 360 acres of land at $36,000. As before stated, tbe plaintiffs did not comply with tbe original contract as modified, — to pay interest, — in that defendant did not acquire an option on tbe 300 acres of Hill & Wilson land, but Avas required in purchasing tbe, fee in them, to take and pay for 80 acres of other land. The contract contained also another and distinct condition, which was, not only to procure the option as to the I-Iill & Wilson lands, but., as the contract stipulated, “and also adjoining ore lands',” on the basis specified. Jt was well understood that this provision referred to the Ilnrst, Little & Burgess lands, containing about 770 acres. An option on these lands Avas to be procured, as a condition precedent, to paying interest, on the purchase money notes, as Avell as the option for the purchase of the 1-Iill & Wilson lands. When conditions precedent to the performance of a contract are more than one, and are copulative, and the act to be performed consists of several particulars, the AAdiole must he performed, “before the estate can arise.” — 6 Am. & Eng. Encyc. Law, (2d ed.), 505.

There is no pretense, that the option on these other lands AA'as procured by plaintiffs. They endeavored to procure, it, but failed, because of an offer at a price they Avere not Avilling to advise defendant to accept and voluntarily left them to. he purchased by defendant, at such price as he chose to pay for them. He aftenvards bought them for $90,000. The evidence Avholly fails to establish any obligation on,defendant to pay interest on account of anything the plaintiffs did in an effort to secure an option on these lands. So, the conditions for paying interest, on the conditions specified, seem to have failed.

We decline to consider other questions raised and discussed, since, under the aúcaa1' Ave take of the case, it is unnecessary to do so.

Affirmed.  