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RIDGEWAY VS. TORAM. 309 complete redress in an action at law. It is by no means certain, looking to the averments of the bill alone, that the complainant could not have maintained an action on the covenant, but if he could not have done so, there would seem to be no doubt that he could have obtained relief at law, in another form of action. The cases cited with approbation, by the Court of Appeals, in Watchman and Bratt vs. Crook, 5 Gill & Johns., 239, would seem to leave no doubt upon the subject. It is there said to be a settled rule, even in the case of deeds, that if there be a condition precedent, and it is not performed, and the parties proceed with the performance of other parts of the contract, al- though the deed cannot take effect, the law will raise an implied assumpsit. The case of Fresh vs. Gibson, et al., 16 Peter's Rep,, 327, is to the same effect. In this case the plaintiff, William Ridgeway, strictly complied with his agreement so far as the farm is concerned, and as to the personal property, the defendant took possession thereof; and, therefore, there can be no doubt, that if an action of covenant could not be supported, because there was not a strict compliance on the part of Ridge- way, with the entire contract on his part, yet enough was done to raise an implied assumpsit, upon which the action of assump- sit could be maintained. The defendant accepted the deed of the real, and took possession of the personal property, and upon the most obvious principles of justice, was bound to pay their worth. Besides these objections to a decree enforcing the lien of the vendor in this case, there is another of much practical diffi- culty, The property sold consisted of real estate, valued at $6,500 and personalty, valued at 2,211 Making $8,711 The consideration to be paid by the defendant, in the mode stipulated in the contract, was for this aggregate amount of real and personal property. The bottles were valued at $5000, and the deficiency is alleged to be $4,000 70, and this defi- ciency is alleged to be a charge on the land. But why, it may be asked, should the whole of this deficiency be charged upon |
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Reports of Cases in the High Court of Chancery of Maryland 1846-1854
| Volume 200, Volume 2, Page 309 View pdf image (33K) |
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