Contract performable at different periods. - Effect of non-performance, and of over-performance. - If the one party repudiate, is the other free? - Whether irritancy implied by failing to perform at the day. - Effect of improper performance. - Contract for mariners wages. - Contract between master and servant. - Contract of affreightment. - Contract not signed by all parties. - Obligation ad factum pręstandum.
Cuming v. Cuming
Date: 14 November 1628 Case No. No 13.
Process was not sustained for payment of a bond, bearing to be for the price of land, until the seller should ratify his bargain at his majority, he being then minor, in respect by a separate back bond he was bound to grant this ratification.
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In an action Cuming against Cuming, the buyer of land having given a bond to pay the price thereof to the seller, and which bore the sum to be owing for the price of land; and, at the date of the said obligation, the seller, by a backbond, binding himself to the buyer, to ratify the alienation made by him at his perfect age, and if he fails, to pay a great sum contained in the back-bond, which exceeded far the price contained in the buyer's bond foresaid, obliged so be paid for the lands; and the seller thereafter having made another assignee to that bond, given to him for the price of the land, which was pure and simple, and affected with no condition; and which assignee having charged therefor; it was found, That albeit the bond assigned was pure, yet it was affected with the condition of the back-bond made of the same date; and it was respected as a part of the said alienation, and as if it had been inserted in the bond, and was found to meet the assignee, as it would have met the cedent's self; and seeing the bond made by the buyer to the seller, which was assigned, bore to be granted for the price of the land, it was found, That the buyer could not be compelled to pay the same, before that the assignee should obtain the cedent's ratification of the alienation, done by the cedent after his majority, conform to the back-bond, or else until the time he was past the age of 25 years, and so after the years of his restitution; and which was so found, albeit the back-bond bore no clause, that the buyer should not pay the price till that were done, but only astricted the seller to pay a greater failure to the buyer, if he ratified not, which was not respected, as said is; but in the mean time, during the retention of the money, the buyer was obliged to pay profit to the assignee yearly, while the sum were paid by him.
Act. Lawtie.Alt. Nicolson et Neilson.Clerk, Hay.
Fol. Dic. v. 1. p. 595. Durie, p. 396.
