Keefer v. Zimmerman

JRowik, C. J., delivered the opinion of this Court. The appellees sued the appellant, on the 25th of November 1859, on an agreement under seal, dated the 15th October 1846, wherein the appellant covenanted to pay for certain tracts of land §538, to be paid as follows, viz: “fifty dollars to be paid on the first day of April 1847, and one hundred annually thereafter, until paid, with interest from the date above mentioned; at the time of last payment, said Zimmerman binds himself, his heirs, &c., to make a deed of conveyance, warranting and defending the same unto sa^d Keefer, his heirs, &c., as soon as the whole amount of money is paid; the original papers and patents to be procured and delivered to said Keefer at the time of the last payment, and full and free possession given immediately after this date; said Keefer to give bonds for the yearly payments unto said Zimmerman for the faithful performance of the several covenants.” The parties bound themselves in tbe penal sum of eight hundred dollars. The nar. contained two counts, the first, setting forth as breaches, the non-payment of several instalments of the purchase money, with interest from the date of the agreement: the second, charging the interest from the 1st of April 1847, instead of from the date of the agreement, as in the first count. To these the 'appellant pleaded eight ²⁸⁴ pleas.

Issues were joined on the 1st, 2nd, 3rd, 4th and 5th pleas, and demurrers entered to the 6th, 1th and 8th, which demurrers were sustained by the Court below. The pleas overruled upon demurrer were substantially as follows: For a sixth plea, the defendant says, that he did well and truly pay to the said Jacob Zimmerman, deceased, in his lifetime, the said sum of $50, in the said agreement stipulated to be paid on the first day of April 1847, and well and truly executed his bonds for the yearly payments of the residue of said sum of five hundred and thirty-eight dollars, the amount stipulated to be paid on said land, and which were accepted by the said Jacob Zimmerman, the testator, in performance of the covenant of the said defendant in that behalf. The seventh plea was a repetition of the eighth, except that the words ‘ ‘'promissory notes” were substituted for “bonds.” The eighth plea was a duplicate of the seventh. These pleas are special pleas of performance.

The first inquiry is, to what breaches they are pleaded? The appellees argue that the agreement consists of several covenants; covenants to pay a certain sum in several annual instalments, and a covenant to give bond for the yearly payments; that they have complained of the breach of the former, and the appellants plead a compliance with the latter; that the pleas if otherwise good, are vicious, because they do not respond to the complaint and lead to immaterial issues, inasmuch as, the performance of one covenant is no bar to the action for a breach of another. These pleas are framed under the Act of 1856, ch. 112, without any commencement to indicate the count, or the breach, to which, they were designed as pleas. • Their precise application can only be determined by the grammatical construction of their language. The covenants of the agreement were twofold: to pay a certain sum in annual instalments, and to give bonds for the yearly payments.

The plaintiff alleges that the ²⁸⁵ defendant has not paid certain instalments; the defendant answers, he has paid the sum stipulated to be paid on the 1st day of April 1847, and well and truly executed his bonds for the yearly payment of the residue of the said sum of five hundred and thirty-eight dollars, the amount stipulated to be paid for said land, and which were accepted by the said Jacob Zimmerman, the testator, in performance of the covenant of the defendant “in that behalf.” Is the covenant referred to by the words “in that bahalf,” the covenant to bond or the covenant to pay? It would be unmeaning to say, that having covenanted to pay and to give bond for the payment in instal-ments, the bonds were accepted in performance of the covenant to pay — -the means received for the end. The words “well and truly” imply in conformity with the obligation or covenants of the party, and must be taken to be averred in performance of the covenant, to which they literally apply. And again, the language of these pleas is — “and which bonds” or “which said notes were accepted as and in performance of the covenant of the defendant in that behalf” not in full satisfaction and discharge of the promises and undertakings in the declaration mentioned, and of the damages sustained by the plaintiffs by reason of the breaches aforesaid.

The appellant insists “that the giving of the bonds was a performance of the covenant, and it is expressly alleged they were accepted in performance thereof,” not in satisfaction of the breach of other covenants to pay. It is urged that the right of action on the agreement, was merged upon giving the bonds, and the suit should have been upon them and not on'the