
    Ephraim Buttrick vs. Asa Holden.
    A contract, dated the 19th of April, and in fact executed before noon on that day, to convey land to A within twenty days from the date, is broken by a conveyance of the land toB. at any time on the 9th of May.
    H. having contracted to convey land to A., conveyed it to B. It was held, that a judgment in favor of H. and B., on a hill in equity brought against them by A. for a specific performance of the contract, was no bar to an action by A against B. alone to recover damages for the breach of the contract.
    This was an action on the case to recover damages for the breach of a written contract, dated the 19th of April, 1844, whereby the defendant, in consideration of certain payments to be made, and notes to be cancelled by the plaintiff, promised to convey to him, within twenty days from the date, certain lands in Stoneham and Malden. The breach alleged was, that although the plaintiff had always been ready to perform the contract on his part, and to accept a deed of the land, yet the defendant had neglected and refused to convey the same to the plaintiff; but, on the contrary, before the expiration of the twenty days, to wit, on the 9th day of May, con reyed the same to one Bigelow, and thereby disabled himself to perform his contract.
    The defendant pleaded the general issue, and specified in defence, that the subject-matter of this action had been before adjudicated by this court, in a suit in equity between the plaintiff and the defendant and Bigelow.
    At the trial, which was before Fletcher, J., the plaintiff, in order to prove the breach, produced an office copy of the deed of the premises from the defendant to Bigelow, dated May 9th, 1844, and recorded in the registry of deeds on the same day. The defendant then objected that the plaintiff had offered no proof, that he had himself been ready to comply with the terms of the contract on his part, or had in any way offered to do so, or that he had been aware of the conveyance of the premises to Bigelow; that the plaintiff therefore had no right to complain of the breach; and that the office copy was not sufficient evidence of a breach of the contract. But the presiding judge ruled that the office copy was sufficient evidence, in the absence of any other testimony, and that the plaintiff was not bound to furnish any evidence of a readiness or offer to comply with the terms of the contract on his part.
    It afterwards appeared in evidence, that the original contract was executed before noon of the 19th of April. The defendant thereupon contended that the plaintiff was bound to prove, that the deed to Bigelow was executed and delivered nefore noon of the 9th of May following. But the judge ruled otherwise.
    The defendant then offered to prove that after the 9th of May, and before the commencement of this action, the plaintiff brought a bill in equity in this court against this defendant and said Bigelow for a specific performance of this contract, and for relief; that in the bill, and in the answers and pleadings thereto, the whole subject-matter of this contract, and the consideration and breach thereof, were gone into and examined ; and that this court, upon a consideration of this bill, answers and pleadings, had ordered the bill to be dismissed with costs for the defendants. But the judge ruled that this evidence was not admissible to support the defence of former adjudication, and refused to receive the same for that purpose and in bar of the action.
    The jury thereupon returned a verdict for the plaintiff; and the defendant alleged exceptions to the above rulings.
    
      A. H Nelson, for the defendant.
    1. The deed from the defendant to Bigelow, unless executed before noon of the 9th of May, was not within the twenty days. Bigelow v. Willson, 1 Pick. 485, 495. 2. No breach of the contract was proved. Heard v. Bowers, 23 Pick. 455; Trask v. Vinson, 20 Pick. 111 ; 2 Greenl. Ev § 237; Robb v. Montgomery, 20 Johns. 15; Northrup v. Northrup, 6 Cow. 296; Cunningham v. Morrell, 10 Johns. 203; Seers v. Fowler, 2 Johns. 272; Haven v. Bush, 2 Johns. 387; Dana v. King, 2 Pick. 155; Hunt v. Livermore, 5 Pick. 395; [The exception to the admission of the office copy was waived.] 3. The evidence offered by the defendants, to show a former adjudication of the subject-matter of this suit, was competent. Mills v. Gore, 20 Pick. 28; 6 Dane Ab. 89.
    
      E. Buttrick, for himself.
    1. The conveyance by the defendant to Bigelow, even if made after noon of the 9th of May, was within the twenty days mentioned in the contract. Bigelow v. Willson, 1 Pick. 485; Wiggin v. Peters, 1 Met. 127. 2. And such conveyance was a breach of the contract on the defendant’s part. Hopkins v. Young, 11 Mass. 302; Heard v. Bowers, 23 Pick. 455; Ford v. Tilley, 6 B. & C. 327; Judson v. Wass, 11 Johns. 527. 3. The evidence offered by the defendant was not admissible for the purpose for which it was offered. 2 Dan. Ch. Prac. (Perk, ed.) 1200, note.
   Shaw, C. J.

If the defendant disabled himself from complying with his contract, by conveying the estate to another oerson within the time limited in the contract for making a conveyance to the plaintiff, the tender of performance on the part of the latter is not necessary. Newcomb v. Brackett, 16 Mass. 161; Yelv. (Amer. ed.) 76, in notis. The day of the date (April 19th) being excluded, the plaintiff would have been in time to offer performance, at any time on the 9th of May; if therefore during that day the defendant conveyed, it was an excuse.

As to the other point: The suit in equity was between others; it could only be sustained by affecting Bigelow with notice. A judgment for the defendants in that suit therefore does not tend to negative the defendant’s breach of contract, on which this action at law is brought.

Exceptions overruled.  