# Washington v. Ogden

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United States Supreme Court
66 U.S. 450
Washington v. Ogden
Writ of error to the Circuit Court of the United States for the northern district of Illinois.
This suit was originally brought in the Superior Court of Cook county, Illinois, but removed thence to the Federal Circuit Court upon the petition of the defendants and proof that they were both citizens of Virginia, while the plaintiff was a citizen of Illinois.
The plaintiff filed his declaration in debt, claiming a right to recover the sum of thirty-five thousand dollars, being the amount payable and due on the paper copied by Mr. Justice Grier in his opinion, with interest thereon from the expiration of sixty days after the date of the paper, to wit, 20th July, 1859. The declaration describes fully the property which Washington and Turner agreed to buy from Ogden, and which is designated in their agreement merely as the property described in the John S. Wright contract of June 4, 1855. The narr. further avers that the contract with Wright (to whom the same land had been previously sold by the plaintiffs) was surrendered and cancelled, and that the plaintiffs were ready at all times to make a deed to the defendants for the property sold.
The defendants demurred first, and the declaration was amended. Then pleaded thirteen pleas, craving oyer four times of the paper on which suit was brought, and which was fully set out in plaintiff's declaration. The plaintiff demurred to some of the pleas, and some of the demurrers were sustained and some overruled. The pleadings were at length settled so as to raise the questions—
Whether the plaintiff was ready and willing to perform his part of the contract by making the proper conveyance to the defendants of the lands described in the agreement.
Whether the contract previously made with Wright for the sale of the same lands was surrendered and cancelled within sixty days, agreeably to the terms of the contract between the present parties.
Whether it was necessary that Wright should release his title by a written deed.
Whether the plaintiff, in demanding securities for the deferred payments, which he had no right to ask, absolved the defendants from the obligation of tendering the thirty-five thousand dollars now sued for.
Evidence on both sides was given, documentary and oral. The court decided the points of law and the jury found the facts in favor of the plaintiff, for whom a verdict and judgment were rendered for debt and interest, amounting to $36,481 66.
The defendants thereupon took this writ of error.
Mr. Arrington, of Illinois, for plaintiffs in error. The declaration is fatally defective. It alleges no title in Ogden, nor any right to convey, but merely his readiness to deliver a deed. The contract was an agreement to sell land, and that implies transmutation of property from one man to another. 2 Blackstone 446; Williamson vs. Berry, (8 Howard, 544;) Thomas vs. Van Ness, (4 Wendell, 549.) A deed might be executed without conveying and title. The declaration should have averred title in Ogden and a readiness to execute such a deed as would be effectual to transfer that title. 1 Chit. Pl., 327; Thomas vs. Van Ness, (4 Wendell, 549;) Glover vs. Tuck, (24 Wendell, 153;) Tyler vs. Young, (2 Scam., 146;) Burn vs. McNulty, (2 Gilman, 128.) You cannot compel a vendee to take a lawsuit instead of the land. Bank of Columbia vs. Hagner, (1 Peters, 455.) Performance must always be alleged according to the intent of the contract. It is not sufficient to follow merely the words. 1 Chit. Pl., 325.
The declaration does not allege notice to the defendants of the surrender and cancellation of the Wright contract, and this being a matter peculiarly within the knowledge of the vendor, should have been stated. 1 Chit. Pl., 328; Com. Dig., C. 73, 74; 2 Pars. Cont., 182. These defects in the declaration are not aided by the verdict. 1 Chit. Pl., 673; Dodson vs. Campbell, (1 Sumner, 319;) Addington vs. Allen, (11 Wendell, 375.)
The court below assumed that a bare declaration by the plaintiff that Wright's contract was forfeited would be legally equivalent to a surrender and cancellation of it. This was clearly erroneous, and misled the jury. Caldwell vs. United States, (8 Howard, 366;) Tucker vs. Moreland, (10 Peters, 58;) United States vs. Beitling, (20 Howard, 254.)
The court said that if it was the agreement and understanding of all parties in interest that the contract was at an end, then it might be regarded as substantially surrendered and cancelled. This statement tended to mislead the jury, whether as a rule of law it was true or false, for there was no evidence of any such understanding or agreement.
An error still more extraordinary is found in the sentence that 'the offer of the property for sale and a declaration of forfeiture after default of payment might be sufficient as showing the exercise of the option on the part of the grantor.' It is true that in Chrisman vs. Miller, (21 Ill., 226,) it was held that the mere act of offering the land for sale after default of the purchaser is sufficient to put an end to the contract. From this the judge of the Circuit Court deduced the startling inference that the mere offer of Ogden to sell the land to Washington and Turner was, per se, a performance of his covenants with them to have the contract with Wright surrendered and cancelled. The surrender and cancellation of Wright's contract was a condition precedent to that which Ogden made with Washington and Turner, and the court had no right to estimate either the importance or necessity of a compliance with it.
Mr. Fuller, of Illinois, and Mr. Carlisle, of Washington city, for defendants in error. In actions against a purchaser on a contract for the sale of land, the plaintiff is not bound to show that he has title to the land. The contract admits at least prima facie his title, and the onus is on the defendant to show that he has not. Bretthauph vs. Thurmand, (3 Richardson, 216;) Brown vs. Bellows, (4 Pickering, 179;) Dwight vs. Cutler, (3 Mich., 566;) Espy vs.Anderson, (14 Penn., 311.)
Under the Wright contract, neither Wright himself nor his assignee had any interest or estate in the premises, and could acquire none, except by complying with the terms of it. This had not been done, and Ogden had a right to treat the contract as at an end. He exercised that right by selling the property to the defendants. Wright and his assignee, Clapp, both knew this, and acquiesced in it. This was a complete surrender and cancelment of the contract. Chrisman vs. Miller, (21 Ill., 227;) Steele vs. Bigg, (22 Ill., 643.) Although the contract was not released of record, that formed no valid objection to the title, as was decided in Greenleaf vs. Queen, (1 Peters, 138;) Espy vs. Anderson, (14 Penn., 308.)
The duty of defendants was to pay the money sued for, and execute bonds and mortgage. No notice from the plaintiff was required. The averment of the plaintiff's readiness to perform his part of the contract was sufficient. 1 Chit. Pl., 326; Rowsen vs. Johnson, (1 East., 208;) Tierney vs. Ashley, (18 Pickering, 546;) West vs. Emmons, (5 Johnson, 179;) Williams vs. Bank of United States, (2 Peters. 96.) A time and place being fixed for the performance by the defendants of their part of the contract, and they not having attended, and the first act of performance resting on them, the plaintiff could do nothing but be ready to perform his part. In the absence of the defendants, he could do no more. The averment of readiness to perform is sufficient, especially after verdict. 1 Chit. Pl., 359.
Mr. Justice GRIER.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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