Folgar v. Buckelew

This was an appeal from the Fourth Judicial District.

The instrument on which the complaint in this case was founded, recites as follows:

“ I hereby certify that if George B. Elkins pays to me cash, $2000, on the 20th May, and $5,500 on the 1st day of June, and executes two notes, bearing date the 1st day of June, and to fall due on the 15th and 31st of the same month, both being in amount $7,500, which amount to be equally divided in’ the notes, and is the remaining half of $15000, the whole purchase money, then I will execute to him a bond for my wharf property, bounded, &c. Unless the $2000 first above mentioned is paid at the time specified, I am no longer bound by this promise; and in case the second payment of $5,500 is not paid as above specified, the first amount of $2000 is forfeited, and this obligation is void. Above dates refer to 1851.

(Signed) B. B. Buckelew.”

“May 6th, 1851. We, the undersigned parties to the above agreement, do mutually consent to the name of Francis B. Fol-gar being substituted for that of George B. Elkins, and the agreement to be in all respects as though made originally with the said Francis B. Folgar, and to be in effect an original paper.

(Signed) B. B. Buckelew.

G. B. Elkins.”

Judgment by default was entered against the defendant, which was set aside and a new trial granted. When the defendant for answer, averred that F. B. Folgar did not, on the 1st of June, pay, or tender, or offer to pay, the said sum of $5,500, nor offer to make and deliver the promissory notes specified in the written instrument, &c. That he did not, on the 30th of May, or before the 2nd day of June last, by any act, &e., deprive himself of the power of fulfilling any stipulations, &c., in said agreement, and that if complainant had not failed to perform, &c., the defendant would have performed, &c., and was ready, &c., to perform his covenants, &c.

The plaintiff then stated to the Court, that he was prepared to prove on the trial, that he had paid to the defendant the §2,000 on the 22d May; that the 31st day of June, on which the second payment was to have been made, fell on Sunday; that on the Saturday preceding the plaintiff went to defendant’s house, to perform what the contract required on that day, when the defendant pretended that there was a ridge of rocks beneath the water on a part of said land, which would unfit it for the plaintiff’s purposes—the examination of which took up the day, but which proved untrue, and which was in fact a scheme got up by the defendant, to prevent the plaintiff from complying with this part of said contract; that on Sunday, the 31st June, plaintiff offered payment of the §5,500, which was refused by defendant; that on Monday, the 2nd June, the plaintiff made a legal tender of that amount in gold, but defendant refused to receive it, on the ground that a tender had not been made on the 1st June, and that it was then too late; and said that plaintiff need make him no more tenders, for that he would not let him have the land: that on the 20th May defendant had sold the land to one Cunningham, and had executed a deed to him for it, for the sum of §25,000, being §10,000 more than plaintiff was to have paid for it.