1834. BESWICK against SWINDELLS. good, because it shews that, by the terms of the condition itself, the money never became payable. Follett contrà. The defendant has not got rid of the obligatory part of the bond by pleading that he had ceased, before the death of the wife, to carry on the business; that he had then no stock in trade of which an account could be taken. In order to take advantage of the condition of the bond, he ought by his plea to have shewn performance, or some valid excuse for non-performance. The plea does not shew that the bond had become void by performance of the condition; for the condition makes the bond void, not if J. S. shall cease to carry on the business, but if the sums of money therein mentioned be paid to the children of the wife within twelve months after her decease; otherwise the bond is to remain in full force and virtue. It not being averred, therefore, that those sums were paid, the bond remained in force. The effect of the plea is, not that the defendant performed the condition, but that, by the happening of an event, such performance had become impossible. But it ought to have further shewn that it had become impossible by the act of God, the act of the law, or of the obligee: Com. Dig. tit. Condition, L. 6., L. 12., L. 13. Sheppard's Touchstone, p. 372. It is there said that, "If A. be bound to B. that J. S. shall marry Jane G. by such a day, and before the day B. himself marry with Jane G., hereby the obligation is discharged, and B. shall never take advantage of it." Here the ceasing to carry on the trade must be taken to be primâ facie the act of the obligor. It is, therefore, no excuse for his non-performance of the condition: on the contrary, the very act act was a breach of the condition; Com. Dig. Condition, 1834. BESWICK against SWINDELLS. that 1834. BESWICK against SWINDELLS. that he should be obliged to carry it on if it were a losing concern.] James Swindells having acquired by marriage the property of his wife, it is absurd to suppose that the parties meant to leave it at his option to do or not to do the act on which the payment of the money is made to depend. But assuming that to be the true construction of the condition, then, as performance before the death of the wife became impossible by the act of the obligor, the condition thereby became null and void, and the bond remained in force; for where the thing to be done by the condition is such as in its nature is impossible to be done at the time of the making of the obligation, there the obligation is good, and the condition only is void; Sheppard's Touchstone, c. 21. p. 372. Here the thing to be done, though possible at the time of making the obligation, was rendered impossible before the time for performance arrived, by the act of the obligor. Suppose a bond were conditioned to pay A. 600l., if the obligor should be at Rome within six months, and he was not there; the non-performance of the condition would be the act of the party himself. The obligatory part of the bond would continue in force. [Patteson J. That would be an obligation to pay on a condition that failed.] It may have been the very object of the bond to compel James Swindells to carry on the business. The obligee could derive no benefit from the obligor's having ceased to carry it on; and he ought to have continued to do so, if he meant to avail himself of the condition. Wightman, in reply. The true construction of the bond is shewn, not only by the words of the condition itself, but by the recited agreement of the parties on which which it is founded. That agreement was to execute a bond to pay to the children 300l. within twelve months after the decease of the wife in the event thereinafter specified. Now, the event after specified (independent of the death of the wife), is the taking of an account of the stock in trade in the business, if then carried on by James Swindells. The obligor, therefore, was not bound to carry on the business at all events. If he had fraudulently ceased to carry it on, that, if replied, might have been an answer to the plea. It is not shewn that the discontinuance of the business was the act of the obligor. The profits of the trade may have ceased, and the stock in trade may have been entirely consumed without his default. Then, assuming that, according to the true construction of the bond, the obligor might discontinue the trade; or that it ceased without his default, the plea is good; for the fact stated in it is a valid excuse for non-performance of the condition, because it appears by the former part of the record, that the parties had expressly agreed, that, on the happening of the event mentioned in the plea, the condition should not be performed. Secondly, the plea is good, also, because it shews that there never was any breach of the condition or forfeiture of the bond; for it alleges that, before the death of the wife, an event happened which rendered any performance or breach impossible: and the case is not one of those (which are extreme ones) where the obligee becomes entitled to consider the obligation as single: for the words are neither insensible; nor was the condition imposible at the time of making, or against law. Com. Dig. tit. Obligation, E. (a). (a) This case was argued by Wightman, on Friday the 17th of January, in the absence of Follett; when the Court gave judgment nisi for defendant. VOL. V. 30 After 1834. BESWICK against SWINDELLS. 1834. BESWICK against SWINDELLS. DENMAN C. J. It is imposible to say that this is clear case on either side. It struck me, at first, that, by the condition of the bond, the thing to be done by the obligor was made to depend on a contingency which had not happened, and therefore he was not bound to do it. I thought that, as James Swindells had ceased to carry on the business before the death of his wife, and there was then no stock in trade of which an account could be taken, the money had not become payable to the children of the wife; and I now think that first impression was correct. The true construction of the condition appears to me to be, that James Swindells was to have an option to carry on the business or not; and if that be so, then the fact stated in the plea, that he had ceased to do so before the death of his wife, and that there was then no stock in trade of which an account could be taken, was a sufficient excuse for nonperformance, because the parties agreed in effect that it should be so; as appears by the condition of the bond set out on oyer. Besides, I am not prepared to say that it must be taken, on these pleadings, that the cessation of the trade was the act of the obligor. I think we shall violate no rule of law by holding, that the defendant is entitled to judgment, on the ground either that non-performance of the condition was excusable, because, by the contract between the parties, it was not to be performed in the event alleged in the plea, or on the ground that the trade may have come to a determination without any default of the obligor. Afterwards, on the same day, Follett was heard for the plaintiff; and Wightman was heard in reply on the 24th of January; when the Court gave final judgment. LITTLE |