Слике страница

the tract of ten thousand acres do not answer below. Cases from Florida are not exceptions to the description contained in the pretended to the principles which govern other appeals grant, and so cannot be the origin of title. brought here.

The Attorney-General said, that, as the But the testimony of Clarke was legal. The representative of the United States, it was his statement made by the commissioner is no part duty, in all the cases of land claims sent up of his evidence; and if it is, it does not show from Florida, to examine them with a judicial that he was interested at the time of his exam. eye.

ination. He had been interested, but that interThe act of Congress requires that all the est might have ceased. He does not assert . cases of this description brought before the present interest. courts of Florida, in which the decision shall be against the United States, should be brought Mr. Justice Catron delivered the opinion of by appeal to this court. If the law officer of the court: the government see anything in the case, it is This was a mill grant of five miles square of his duty to present it to the court for its decision; land, or sixteen thousand acres; that is, at and, in doing this, he is not restrained by any: Doctor's Branch, where the mill was intended thing which may have been done or omitted to be erected, six thousand acres; and ten thou. by the District Attorney of the United States, sand acres "on the northwest side of the head before the courts of Florida. The whole subject or lagoon of Indian River.” is open; and under this view the whole of the The concession was made (6th of April, 1816) 165*] matters before the court below *may be on the condition that the mill was built. The fully examined, and exceptions taken here, mill was erected. which had been omitted upon the first hearing The first survey was made at Doctor's Branch, of the case.

in 1819, and is free from objection. That this grant is null and void, has been The second, for ten thousand acres, was already decided on the principles settled by this made February, 1820, by the Surveyor-General court in the case of the United States v. Sib- of East Florida, “northwestwardly of the head bald, 10 Peters, 313, and in other cases. This was of Indian River, and west of the prairies of the a grant on a precedent condition, the establish- stream called North Creek; which empties it. ment of a mill. The condition was not per- self at the head or pond of said river.” Such formed. The evidence is insufficient to estab- is the description in the certificate of the Sur. lish the improvement. The description of the veyor-General. The survey had been objected land in the grant is too vague and indefinite. to, but the objection was withdrawn at the

The evidence of Clark should have been reject- hearing below; and it is insisted that a waiver ed by the court; and this court will exercise the of its legality must be inferred. The objection power to strike it out, although it was allowed extended to the competency of the paper as to be read by the District Attorney of the evidence, and not to its effect when heard; so United States. The memorandum made by the the court held in Breward's case, at this term. commissioner, after taking the examination, The official return of the Surveyor-General shows his interest in the case. He had pur has accorded to it the force of a deposition. chased a part of the very grant his testimony So we held in the cases of Breward and Han. was to sustain.

son; to which we refer. As to the regulations of Spain relative co The land could only be surveyed at the place grants of lands by the governors of their terri. granted; if elsewhere, it would have been a new tories, and which this court had declared to be appropriation, when the survey bears date in in force, the Attorney-General cited 2 White's 1819, contrary to the eighth article of the treaty New Recopilation, 278.

with Spain; and the question is, was it at the Mr. Berrien and Mr. Wilde, for the appellees: proper place ?

No question can be presented to the court, on It was granted "on the northwest side of the this record, which has not already been decided head of Indian River, or lagoon.” in the many Florida cases which have been fre- *According to the strict ideas of con- (*167 quently examined and decided by it. The grants forming a survey to a location, in the United were sufficiently descriptive. The lands were States, the survey would be located adjoining found by the Surveyor-General, under the Span- the natural object called for, there being no ish government; and surveys and plats were made other to aid and control the general call; and of them. Whether the survey of the ten thou therefore the head of the lagoon would neces. sand acres was near to or distant from the six sarily have formed one boundary. But it is thousand acre tract, is of no consequence. The obvious more latitude was allowed in the prov. power of the Spanish governor to make the ince of Florida. The object of the grant was grant where he though proper was complete. timbered land, fit for the supply of lumber;

The construction of Spanish grants is not and if the nearest vacant timbered land to the determined by the principles of the common head of the lagoon was surveyed, the intentions law, but by the laws and ordinances of Spain. of the government and of the grantee were by treaties, and by the orders of the king complied with. This was the construction This has often been so held by this court. Cited, given by the Surveyor-General to the words Delespine's case, 15 Peters, 341.

"northwest side.” He permitted the general The evidence to establish the performance of call to vary so far, and no further, as to secure the condition, is sufficient without the testi- timbered land, excluding the prairies next the mony of Clarke. But still Clarke's evidence is head of the lagoon. The legality of the sur. insisted upon. A party is not to be taken by vey depends on the fact. The description given surprise by a new exception in this court, and in the certificate above recited, and that set 166*] to be called upon to support 'the legal forth by the decree, must be taken together; tho ity of evidence which was allowed by the court lines and boundaries on other lands are given in the decree. The complaint is, that the land thousand Ove hundred and sixty-eight dollars and was surveyed too far west. On the north, it is seventy-four cents, which, from Inability, they did bounded by the lands of Charles Sibbald; on leans, and were there paid, with damages and inter the south, by those of John M'Intosh; on the est, by H. & G., at great loss and inconvenience. west, by royal, or vacant lands; and on the The notes deposited with L. amounted to upwards east, by the prairies of North Creek, which thousand dollars, and the notes for one thousand empties itself at the head of Indian Lagoon. five hundred and sixty eight dollars and seventyThere is no evidence that North Creek is navi. four cents, B. & Co. filed a petition according to gable. If there was such evidence, as the sur which the indorsed notes in the hands of L. should

the Louisiana practice, praying for a decree by vey includes the creek, we would reverse the be delivered to them, equal to the balance due to

them, decree, and order the survey only to front one

The district judge gave a decreo in favor

of B. & Co., in conformity with the petition. Held, third part on the creek. The Surveyor-Gen. that the decree was erroneous; and the court reeral certifies that this ten thousand acres is the versed the same, and ordered the case to be retract of land granted to the petitioner, on the manded, and the petition to be dismissed with 6th of April, 1816; and, although no 'reliance costs, by the Circult Court of Louisana.

The Supreme Court has no authority, as an apwould be placed on the assertion in the certifi-pellate court, upon a writ of error, to revise the cate, standing alone, still, taking the return evidence in the court below, in order to ascertain that the survey was on the land granted, in whether the judge rightly interpreted the evidence,

That is the connection with all the facts and circumstances proper province of the jury, or of the judge him. appearing in the record, and it tends to confirm self, if the trial by jury is waived, and it is submit. the conclusion that the land was laid off on the re-examine the law, so far as he has pronounced it,

The court can only next land to the head of the lagoon, covered upon a state of facts; and not merely, upon the with timber. One other consideration has evidence of facts found in the record in the making

If either weight. If it be untrue that the survey is at party in the court below is dissatisfied with the rul. the proper place, the United States could have ing of the judge in a matter of law, that ruling proved the fact to a certainty, with the slightest should be brought before the Supreme Court, by diligence, and ought to have proved it. This an appropriate exception, in the nature of a bill of

exceptions; and should not be mixed up with the consideration is strengthened by the pleadings supposed conclusions in matters of fact. and evidence. The petition filed in 1829, al. leges that the surveys were made for lands what the French law, the basis of that of Louisi:

apa, calls a commutative contract, involving mugranted; and sets out the descriptions, courses, tual and reciprocal obligations; where the acts to 168*] and distances, to which the *attorney be done on

one side form the consideration for of the United States made no answer; the fact those to be done on the other.

Upon principles of general justice, if the acts are was not admitted for this reason, and necessary to be done at the same time, neither party to such to be proved by the complainant (6 Cranch, 51), a contract could claim a fulfillment thereof ; un. yet it shows that the claim was not resisted on form. all the acts required on his own part.

less he had first performed, or was ready to perthis ground; and such was clearly the case When the entire fulfillment of the contract is throughout, as George F. Clarke, the Surveyor. contemplated as the basis of the arrangement, the General, was twice examined as a witness, on contract under the laws of Louisiana, is treated many interrogatories, without having been re- pel the other to a specific performance, unless he quested to state the locality of the ten thou complies with it in toto. sand acres survey.

N error to the District Court of the United together, we order the decree to be affirmed.

Booraem & Company, merchants of New York, agreed with Hyde & Gleises, merchants of New Orleans, who were indebted to them, to give them an extension of time for the pay.

ment of the amount due by them, if they would 169') 'HYDE & GLEISES and H. Locket, give their notes, payable at subsequent periods, Plaintiffs in Error,

for a certain sum, the notes to be indorsed, and deposited with H. Locket, and to be delivered

to them on their having paid certain engageBOORAEM & CO., Defendants in Error. ments, due in New York, and the amount of

which was included in the amount of the notes Commutative contract-partial failure of one deposited in the hands of H. Locket. The

party to perform-indivisible contract-con-notes were given and deposited in pursuance ditional novation.

of this agreement; and Booraem & Company

performed all the matters contained in the Louisiana. The defendants in error, merchants in New York. agreed with the plaintiớs in error: agreement, excepting that they did not pay a H. & G., merchants in New Orleans, that jodorsed draft for two thousand dollars, and a note for notes should be given by H. & G. for a certain one thousand seven hundred and sixty-eight gum, being the amount due by H. & G. to Bidollars and seventy-four cents, due and payaNew York, wbich Indorsed notes were to be deposit ble in New York, being unable to pay the ed in the hands of L., to be delivered to B. & Co., same. The draft and note were returned to on their performing their agreement with H. & G.; New Orleans, and Hyde & Gleises, at great innotes glven by H. & G., and payable in New York. convenience and loss, paid for the same. The notes, indorsed according to the agreement, Booraem & Company, proceeding according were drawn and delivered to L. formed all their contract, excepting the payment of to the practice in Louisiana, filed a petition in a draft for two thousand dollars, and a note for one the District Court, then exercising the powers

of a circuit court of the United States, asking Noth.-That to compel specific performance, plain: that the notes of Hyde & Gleises, in the hands til must show readiness to perform, see notes to 8 L. ed. U. 8. 627; 4 L. ed. U. S. 254,

of H. Locket, taking from the same a sufficient 10 L. ed.

Upon as these facts and circumstances, taken I states for East Louisiana.

[merged small][ocr errors]
[ocr errors]

amount to repay to them, Hyde and Gleises, the whose interests are affected by this judgment. It amount of the two thousand dollars draft, and is not sufficient that they may defend themselves the note for one thousand five hundred and sixty. when sued on the paper. The court should not eight dollars and seventy-four cents should, by expose them to the jeopardy of a suit, by de. a decree of the court, be ordered to be delivered creeing a delivery of their paper to Booraem & to them.

Company, unless it is found, in the terms of After a full hearing of the case, on the peti. the contract, that the conditions and contin. tion, the answer, and the testimony, the Dis. gencies have happened on which it should be so trict Court gave a decree in favor of the peti. delivered. If the decree is to affect their intertioners; and the defendants prosecuted this ests at all, as it manifestly does, will not the writ of error.

court look to see what these interests and their The case is fully stated in the opinion of the agreements are? It is perceived, then, that court.

these persons are the sureties of Hyde & Gleises, Mr. Key and Mr. Henderson argued the cause on the terms of their contract. And if Hyde for the plaintiffs in error, and Mr. Coxe ap- & Gleises had consented to change the contract peared and argued the cause for the defendants. without consent of the sureties, they would not 171“] *Mr. Key and Mr. Henderson contend. have been bound, even though beneficial to ed that the record shows, beyond cavil, that their interests. There is no equity against a the special contract sued on was executory, surety; but such have a right to stand on the and dependent in its terms of execution on both exact terms of their contract. 9 Wheat. 680; sides. Booraem & Company agreed to cancel 12 Wheat. 511; Paine's C. C. R. 305; 3 Wash. and extinguish certain liabilities and evidences C. C. R. 70. of debt then due them by Hyde & Gleises, and Mr. Coxe, for the defendants in error, cited 4 to take up and extinguish others to become due, Louisiana Rep. 465; 3 Louisiana Rep. 1; Code and part of which Booraem & Company had of Practice in Louisiana, 517, 487, 488, 489; 7 passed from their hands. On this considera- Martin's Rep. 21; 1 New Series, 187; 4 New tion, Hyde & Gleises undertook to furnish Boo Series, 21; 8 New Series, 379; 1 Peters, 620; raem & Company with new evidences of debt, Louisiana Code, article 602, 2042; 3 New Series, payable at a more remote day than that to which Louisiana Rep. 606, 607. any of the former liabilities extended, and to give approved indorsers on most of the new Mr. Justice Story delivered the opinion of paper. Now, the obvious understanding of the the court: parties to this agreement was, that so soon as This is the case of a writ of error to the Circuit the first set of securities was taken up and de-Court of the Eastern District of Louisiana. The livered to Hyde & Gleises, that the second set original suit was brought conformably to the of securities, prepared and placed in the hands Louisiana practice by petition, in which Booraem of a mutual depositary, should then be delivered & Company, the original petitioners, state, that over. So understood Mr. Locket, the deposi- two of the original defendants, Hyde & Gleises, tary. So did Booraem & Company, as shown merchants uf New Orleans, being indebted to by their subsequent letter, of date 28th May, the petitioners in a considerable sum, did, in 1837; and so it is averred by Hyde & Gleises. April, 1837, deliver to the petitioners certain This is just; and courts favor the principal of promissory notes, to wit, three notes drawn by dependent contracts because most just. 1 | Hyde & Gleises to the order of, and indorsed by, Peters, 465.

T. R. Hyde & Brothers, dated the 6th of April, It will be observed, also, that this suit is not 1837, at six, twelve, and eighteen months, to recover money due by contract. Nor is it amounting to five thousand dollars; and three to recover damages for breach of contract. notes drawn by the same drawers to the order Nor is it an action of detinue and trover. But of, and indorsed by William T. Hepp, dated on it is an attempt to have decreed a partial, specific the sixth of April, 1837, at seven, eleven, and performance of a contract, for delivery of chat. fifteen months, amounting to five *thou. (*173 tels of choses in action. Now, the rule is uni- sand dollars; and three notes drawn by the same versal, that he who asks a specific performance, drawers, to the order of Booraem & Company, must himself have performed, or be in a condi- dated the 6th of April, 1837, at nine, thirteen, tion to perform, his part. 1 Wheat. R. 178; 2 and seventeen months, amounting to two thou. Wheat. 290.

sand seven hundred and fifty dollars and sixty. But this record admits the agreement, and four cents. The petitioners then state that on acknowledges the default of the plaintiff; and receipt of the notes, they, the petitioners, agreed thereupon the court proceeds to reform and re- to extinguish any and all demands which they model the contract, to correspond with the had against Hyde & Gleises, or for which the delinquency of the plaintiff. This the defend petitioners had become responsible by account, ant, insisting on the terms of his agreement, note, or acceptance, previous to the 6th of April, objects to.

1837, and which, including interest and ex. The court below has made in its direction a change, amounted to eleven thousand seven new contract, different from what the plaintiff hundred and ninety-eight dollars and sixty-four set forth; adverse to the proof in the case, and to cents. The petitioners then aver that they did the will of the defendants. This is equally un-pay and extinguish the said demands, with the authorized by legislative or judicial power. 2 exception of a draft for two thousand dollars, Sumner's C. C. R. 278; 1 Peters, 14; 4 Wheat. and a note for one thousand five hundred and 316; 8 Wheat. 1.

sixty-eight dollars and seventy-four cents, which We submit, too, that, though T. R. Hyde & they were unable to provide the means of taking 172*] Brothers, and W. *T. Hepp, the indors- up, and which have since been taken up by ers, are not parties to the action, yet they must Hyde & Gleises. The petition then goes on to be noticed as parties to the contract, and parties 'state that these notes were left in the hands of

H. Locket, Esq., the other defendant, at New failure of the petitioners to comply with the Orleans, who had been notified not to dispose agreement, and the payments they were forced of them to the prejudice of the rights of the to make, they exhausted their resources and petitioners; that they had demanded, the deliv. credit, and their business was destroyed, and ery of five of the notes, to wit, three indorsed by their ability to protect their indorsers was ut. Hepp (the others drawn to the order of, and in terly at an end; and they conclude by denying dorsed by Hyde & Brothers, being omitted in their indebtment in the manner stated in the this part of the petition by mistake), and a petition, and pray that the petitioners may be balance in cash of four hundred and sixty-nine cited to answer in reconvention, and be con. dollars and twelve cents, according to the ac-demned to pay the amount of five thousand count annexed; that they had also demanded a dollars to the defendants as damages. delivery of the same five notes from Locket; but *The defendant, Locket, by his an. (*175 he had refused to deliver the same. The peti-swer, asserted that the notes were deposited in tioners therefore prayed that they might have his hands by the joint consent of the petitioners a judgment of the court decreeing a delivery to and Hyde & Gleises, to be delivered to the peti. them by Locket of the three notes drawn by tioners by him when all the conditions in the Hyde & Gleises to the order of T. R. Hyde & receipt were fulfilled by the petitioners; and he Brothers, and two of the three notes drawn to avers that the agreement never was fulfilled on the order of William T. Hepp, one at eleven the part of the petitioners, and that they are not months for fifteen hundred dollars, and the entitled to the notes. other for two thousand dollars at fifteen months; The indorsers also filed a petition of interand decreeing Hyde & Gleises to pay the said vention in the cause; which, however, was aftbalance of four hundred and sixty-nine dollars erwards withdrawn. The petitioners replied and twelve cents; and they also prayed for furto the plea of reconvention, denying their inther relief.

debtment. Such is the substance of the petition, which Upon this state of the pleadings, the cause does not seem to be drawn with entire accuracy came before the Circuit Court for decision, and precision. Annexed to the petition is a re- without the intervention of a jury, by the conceipt, signed by Booraem & Company, acknowl. sent of the parties, and the final decision was edging the receipt of the nine notes described in made by the district judge, upon an examina174"] the petition, and that they are given for tion of the evidence offered by the parties. The the purpose of extinguishing the demands decree was, in effect, that the defendants ought against Hyde & Gleises, before the sixth of to pay to the petitioners out of the notes the April, 1837, as stated in the petition; and then balance of eleven thousand seven hundred and Adding the following clause: “Should Joshua eighty-nine dollars and sixty-four cents, after B. Hyde, of the firm of Hyde & Gleises, now deducting the amount of the note of one thou. in New York, have settled for the draft of two sand five hundred and sixty-seven dollars and thousand dollars, paid by Booraem & Company, seventy-four cents, and of the acceptance of on the 15th of March, 1837, or for the sum of two thousand dollars paid by the defendants, two thousand one hundred and twenty-eight and the interest thereon; and that for this purdollars and thirty-six cents, by notes or other pose four of the notes in the possession of wise, the said Booraem & Company are bound Locket, to wit: two drawn by Hyde & Gleises to take them up at maturity, and are included to the order of T. R. Hyde & Brothers, of the in said arrangement herein first specified.” 6th of April, 1837, one for two thousand dollars

Hyde & Gleises, in their answer, admit the payable in eighteen months, and the other for drawing and indorsing of the notes, and aver one thousand five hundred dollars, payable in that they were prepared for delivery to the twelve months; and two other notes drawn by petitioners according to the receipt, which con. Hyde & Gleises to the order of W. T. Hepp, tains stipulations binding upon the petitioners, dated 6th of April, 1837, one for two thousand and forming conditions precedent to the deliv. dollars, payable in eighteen months, and the ery of the notes; that to secure a compliance other for one thousand five hundred dollars, with the agreement, it was mutually agreed payable in eleven months, amounting in all to that the notes and receipts should be deposited seven thousand dollars, to be delivered by in the hands of Locket, to be delivered to the Locket to the petitioners or their attorney; and petitioners when the several conditions men that the remaining five notes be delivered to tioned in the receipt were performed, and only Hyde & Gleises; and that judgment be for the in that event were to be delivered; that the petitioners against Hyde & Gleises for the repetitioners totally neglected and refused to maining unsatisfied sum due to the petitioners, perform the conditions; and in consequence of of seven hundred and seventy-six dollars and such omission and neglect the defendants, Hyde ninety cents, with interest from the decree. & Gleises, were forced to pay and did pay a It is from this judgment that the present writ note of one thousand five hundred and sixty of error is brought; the district judge having, at four dollars and seventy-four cents, and an ac. the request of the defendants' counsel, made a ceptance of two thousand dollars, with costs statement of the facts on which he relied; and and damages, both of which the petitioners had the record containing, at large, the (*176 assumed to pay, that the friends of the defend whole evidence at the hearing. ants, Hyde & Gleises, were induced to indorse One of the embarrassments attendant upon the notes by the reasonable expectation that the the examination of this cause, in this court, is defendants would be enabled to meet the notes from the manner in which the proceedings were from the profits of their business, and save their had in the court below. We have no authority, indorsers froin loss, if the extensions stipulated as an appellate court, upon a writ of error, to in the receipt were granted upon all the de revise the evidence in the court below, in order munds of the petitioners: that by reason of the 'to ascertain whether the judge rightly inter.

preted the evidence or drew right conclusionsgation to do or not to do, the other party in from it. That is the proper province of the whose favor the obligation is contracted is en. jury, or of the judge himself, if the trial by titled either to damages, or, in cases which per. jury is waived, and it is submitted to his per mit it, to a specific performance of the contract, sonal decision. We can only re-examine the at his option; or he may require the dissolution law, so far as he has pronounced it upon a of the contract. But it is nowhere provided statement of facts, and not merely a statement that the party who has omitted to perform the of the evidence of facts, found in the record in acts which he has contracted to perform, can the nature of a special verdict, or an agreed entitle himself, if the other party has been in case. If either party in the court below is dis no default, either to a specific mance, or satisfied with the ruling of the judge in a mat. to damages, or to a dissolution of the contract. ter of law, that ruling should be brought before That would be to enable the party committing this court by an appropriate exception, in the the default to avail himself of his own wrong, nature of a bill of exceptions, and should not to get rid of the contract. be mixed up with his supposed conclusions in But it is supposed that where a party has matters of fact. Unless this is done, it will be performed his contract only in part, he may, found extremely difficult for this court to main nevertheless, be entitled to a performance, pro tain any appellate jurisdiction in mixed cases tanto, from the other side; although it has been of the nature of the present. The same embar. by his own default, that there has not been an rassment occurred in the case of Parsons v. Ar entire performance. And certain cases in the mor et al. 3 Peters, 413, and was there rather Louisiana Reports have been relied on to estabavoided by the pressure of the circumstances, lish this doctrine. But these cases, when exthan overcome by the decision of the court. amined, will not be found to justify any such Taking this case, then, as that was taken, to be broad and general conclusion. They established one where there is no conflict of evidence, and no more than this: that where, in a commuta. all the facts are admitted to stand on the record, tive contract, there has been a part perform without any controversy as to their force and ance on one side, from which a bene. (*178 bearing in the nature of a statement of facts, fit has been derived by the other side, the other and looking to the allegations and prayer of the party is compellable to make compensation in petition, and the facts stated by the judge, the pecuniary damages to the extent of the benefit question, which we are to dispose of, is whether, which he has received, deducting therefrom all in point of law, upon these facts, the judg. the damages which he has sustained by the ment can be maintained. We are of opinion want of an entire performance thereof. There that it cannot be, and shall now proceed to as. is nothing unreasonable in this doctrine; and sign our reasons.

although it may not be in many cases recognized In the first place, it is a material circum- and acted upon in the common law, it is often stance, that the petition is not to recover pe. enforced in equity. But this doctrine is not cuniary compensation or damages for any sup- applicable to all cases of commutative con posed benefit conferred upon Hyde & Gleises tracts, generally, but only to cases where the under the agreement; but it is in the nature of contract is susceptible, from its nature and ob. the bill for a specific performance of that agree.jects, of divisibility; and where, not a specifie ment by a delivery up of a part of the notes de performance, but a mere pecuniary claim in the posited in the hands of Locket, not upon the nature of a quantum meruit is sought to be enground of an entire performance of the agree forced. Thus, in the case of Loreau v. De177*] ment on the part of the petitioners, *but clouet, 3 La. R. I, where A agreed to build confessedly upon the admission that they have a sugar-house for B, for a certain price, and B not performed it, except in part; and therefore was to pay for it when the work was completed, seeking a part performance only, pro tanto, and to furnish materials; it was held that if A from the other side. Now, the present being failed to complete the work in the manner what in the French law, which constitutes the stipulated, yet, if B used the sugar-house, he basis of that of Louisiana (Code of Louisiana, was bound to pay for it in money, the value of art. 1760 to art. 1763), is called a commutative the labor he had expended upon it; that is to contract, involving mutual and reciprocal obli. say, the value, of the benefit he had derived gations, where the acts to be done on one side from the labor; for the Civil Code of Louisiana form the consideration for those to be done on (art. 2740) contemplates that B, in such a case, the other, it would seem to follow, upon prin. is entitled to damages for the losses sustained ciples of general justice, that if they are to be by him from the want of a due fulfillment of done at the same time, neither party could claim the contract. The same decision was made a fulfillment thereof, unless he had first per- under similar circumstances in the case of Etir formed, or was ready to perform, all the acts re v. Sparks, 4 La. R. 463. quired on his own part. And this, accordingly, But, where the entire fulfillment of the conwill be found to be the rule of the Civil Code of tract is contemplated by the parties as the Louisiana (art. 1907), where it is declared that basis of the arrangement, the contract is treated in commutative contracts, where the reciprocal as indivisible; and neither party can compel obligations are to be performed at the same the other to a specific performance, unless he time, or the one immediately after the other, complies with it in toto. Thus, if A should the party who wishes to put the other in de agree to sell B a ship for ten thousand dollars, fault, must, at the time and place expressed in or a horse for five hundred dollars, and B or implied in the agreement, offer, or perform, should pay a part only of the purchase money. as the contract requires, that which on his part as, for example, a fifth or tenth part thereof, it was to be performed, or the opposite party will would hardly be pretended that he would be not be legally put in default. And again (art. entitled to a specific performance, pro tanto, 1920 and art. 2041), on the breach of any obli- I by a conveyance of a fifth or tenth part of the

« ПретходнаНастави »