Vt.)

MCLEAN v. WINDHAM LIGHT & LUMBER CO

613

How. 576, 15 L. Ed. 35; Hill v. Merchants,
134 U. S. 515, 10 Sup. Ct. 589, 33 L. Ed. 994;
Valley Bank v. Craig, 181 U. S. 548, 21 Sup.
Ct. 703, 45 L. Ed. 994.

For the reasons stated, the decree appeal-
ed from will be affirmed.
Decree affirmed, with costs.

(85 Vt. 167)

MCLEAN et al. v. WINDHAM LIGHT &
LUMBER CO. et al.

OF PARTIES.

9. 1911.)

requirements thereof in circumstances of doubt A party to a contract who goes beyond the ought not from that fact alone have his act given the effect of a concession as to his understanding of the contract as an aid to the court in construing the contract.

has said it shall not. Courts cannot nullify the requirements of the statute, which governs the instrument, the trustees, and the court alike. They cannot enlarge, modify, or restrict the plain language and terms of a statute to meet the exigencies of a particular case, nor uphold contentions, that would contravene the fundamental and imperative requirements of the statute itself. It will be seen by reference to the various acts of Assembly, upon this subject, since Acts 1874, c. 483, that various changes have from time to time been made in the provi- (Supreme Court of Vermont. Windham. Oct. sions of section 205, but the requirement for bonding trustees has always been retained. 1. CONTRACTS (§ 170*)-CONSTRUCTION-ACTS This section as now codified (section 221, art. 16, Code 1904) reads as follows: "Every trustee to whom any estate, real, personal or mixed shall be limited or conveyed for the benefit of creditors or to be sold for the benefit of creditors or to be sold for any other purpose," shall file the bond as required, and no title shall pass, and no sale without such bond shall be valid, or pass any title to the property. We hold that the deed now before us falls within the terms of section 205 of article 16 of the Code of 1888, as amended by Acts 1892, c. 241, and that this section is not limited to conveyances creating a trust for the benefit of creditors alone, but was intended to apply to deeds creating trusts "for the sale of property for any other purpose," as provided by the terms of the act itself. We further hold that, as the trustees failed to file a bond as required by law, no title passed to them, and consequently the sale made by them, without having filed the bond, was invalid, and did not pass any title to the property.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 753; Dec. Dig. § 170.*] 2. CONTRACTS (§ 153*) - CONSTRUCTION-EF

FECT TO EVERY PART.

A contract must be so construed, if possible, as to give some effect to every part thereof. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 734; Dec. Dig. § 153.*] 3. CONTRACTS (§ 147*)-CONSTRUCTION-MEAN

ING OF LANGUAGE.

Ordinarily, the language of a particular provision of a contract will be construed in the light of its purpose as gathered from a consideration of the contract as a whole.

[Ed. Note.-For other cases, see Contracts, Cent. Dig. § 743; Dec. Dig. § 147.*] 4. VENDOR AND PURCHASER (§ 215*)-BONA FIDE PURCHASER.

Where a vendor secured by mortgage on the premises for the unpaid price purchased the purchaser's equity with knowledge of the rights of a third person who had contracted with the purchaser for the premises, and who had agreed to pay the unpaid price subject to limitations, the vendor stood in no better position than the purchaser, and beyond the right to the payment of the mortgage indebtedness, the contractual obligations with the third person controlled.

[Ed. Note.-For other cases, see Vendor and Purchaser, Dec. Dig. § 215.*]

5. VENDOR AND PURCHASER (8 78*) - CONTRACTS-TIME AS OF THE ESSENCE.

The rule that time is not of the essence of

a contract of sale of real estate where there is nothing special in the objects, subject-matter, or terms thereof, though a certain time is fixed for the execution of its terms, does not apply where the contract plainly discloses an intention to make exact performance as to time an essential element, when the failure to perform is willful or intentional, or the delay unreasonably prolonged, or when the party entitled to performance has been so injured that complete reparation is impossible.

[3] We think it is too well settled to admit of serious controversy that this class of legislation is free from all constitutional objection, and does not offend against either article 23 of the Declaration of Rights of this state, or section 1 of the fourteenth amendment of the Constitution of the United States. The cases relied upon by the appellants in their brief have no application to the principle upon which such legislation is based. The Legislature has the undoubted right to change and adopt rules of evidence, and to alter and modify the remedy for the enforcement of rights, and these are always further subject to modification and control by the Legislature. Gibbs v. Gale, 7 Md. 76; Baugher v. Nelson, 9 Gill, 308, 52 Am. Dec. 694; Southerland v. Norris, 74 Md. 326, 22 Atl. 137, 28 Am. St. Rep. 255; Wilson v. Simon, 91 Md. 1, 45 Atl. 1022, 80 Am. St. Rep. 427. The power of the Legislature to mould and provide at its pleasure the remedy in legal proceedings is fully sustained by the Supreme Court of the United States in a number of cases. Ogden v. Saunders, 12 Wheat. 349, 6 L. Ed. 606; Webb v. Den, 17 *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes

[Ed. Note. For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. § 78.*]

6. VENDOR AND PURCHASER (8 78*) — CON

TRACTS-TIME AS OF THE ESSENCE.

Equity will not treat time as of the essence of a contract of sale of real estate unless it affirmatively appears that the parties so regarded it, but time may be made essential by express stipulations or by an intention implied from the nature of the property or the avowed objects

[Ed. Note.-For other cases, see Vendor and Purchaser, Cent. Dig. §§ 121-125; Dec. Dig. § 78.*1

7. CONTRACTS (§ 147*) - CONSTRUCTION-INTENTION OF PARTIES.

The court in seeking the intention of the parties to a contract must give regard to the subject-matter of the contract and its language. [Ed. Note. For other cases, see Contracts, Cent. Dig. § 730; Dec. Dig. § 147.*]

8. LOGS AND LOGGING (8 3*)-CONTRACTSCONSTRUCTION.

Argued before ROWELL, C. J., and MUNSON, WATSON, HASELTON, and POWERS,

JJ.

Gibson & Waterman, A. V. D. Piper, and J. K. Batchelder, for orators. Clarke C. Fitts, Hermon E. Eddy, and Kittredge Haskins, for defendants.

A contract for the sale of standing timber fixed the price at a given sum per 1,000 feet, and provided that payments should be made to the mortgagee of the land on which the timber stood as mortgage notes fell due. It also provided that, on discovering that there would not be sufficient timber to pay the amount of the mortgage, the purchaser might terminate the contract if this were done when a certain mortises gage note fell due. There was no express provision of the contract requiring that, on failure to rescind, the purchaser should pay the amount of the mortgage, regardless of the amount of timber. Held, that the privilege of terminating the contract was a mere option, and, on failure to exercise it, the purchaser, though continuing to act under the contract, was not bound to pay the full amount of the mortgage, where there was a shortage of timber.

[Ed. Note. For other cases, see Logs and Logging, Cent. Dig. §§ 6-12; Dec. Dig. § 3.*] 9. CONTRACTS (§ 143*)-CONSTRUCTION-FAIRNESS OF AGREEMENT.

Where the terms of a contract leave its meaning in doubt, the court will adopt the construction which makes the contract equitable. [Ed. Note.-For other cases, see Contracts, Cent. Dig. § 723; Dec. Dig. § 143.*]

10. LOGS AND LOGGING (§ 3*)- SALE OF STANDING TIMBER-CORRECTION OF DETERMINATION OF QUANTITY.

Where no action was taken on figures given by persons in scaling timber sold under a contract stipulating for the measurement of the timber by surveyors selected by the parties as a basis of settlement, an erroneous classification of timber by such persons could be corrected by

the courts.

[Ed. Note. For other cases, see Logs and Logging, Dec. Dig. § 3.*]

11. HUSBAND AND WIFE (§ 25*)-CONTRACTSAGENCY OF HUSBAND.

On

MUNSON, J. On the 1st day of September, 1906, Henry A. McLean and Hattie T. McLean, the petitioners herein, referred to in the contract mentioned hereafter as H. A. McLean & Co., conveyed to the Windham Light & Lumber Company, one of the defendants, hereinafter called the Windham Company, certain real estate in Jamaica, which included timber lands and a sawmill. the same day the Windham Company executed to the McLeans a mortgage of said premises to secure the sum of $17,000, specified in four notes: One for $7,500, payable December 1, 1906; one for $3,200, payable March 1, 1907; one for $3,200, payable June 1, 1907; and one for $3,100, payable September 1, 1907. On the 26th day of March, 1907, the first note having been paid when due, and the second note being then past due, and unpaid, the Windham Company sold to the Jamaica Lumber Company, the other defendant, hereinafter called the Jamaica Company, the timber standing on certain of the incumbered lots and the logs and lumber in the millyard, which sale was evidenced by a deed of the standing timber and a written contract between the parties. The construction and effect of this contract are the principal matters in dispute. The contract fixes the prices to be paid by the 1,000 feet, and provides that payment shall be made to H. A. McLean & Co., or their assigns of record, as the three unpaid notes of the Windham Company held by them become due, and proceeds as follows: "It being distinctly understood and agreed that each and every note after being paid shall be marked as canceled and immediately returned to" the Windham Company, and that "a partial release from the securing said notes shall, at the time of payments, be entered for record at the office of the town clerk." It is provided, further, that, upon the delivery of the contract and deed, the Jamaica Company shall pay to the Windham Company the difference between the amount to be paid to H. A. McLean & Co. on the first note and $4,000. The contract then provides for the selection of surveyors, "who are to measure all the timber purchased from time to time as mutually agreed except the the lumber sawed," and to measure this lumber when loaded, and whose measurements are to be the basis of settlement. It is also provided that the Windham Company shall pay to the Jamaica Company "interest at the rate of 6 per cent. per annum for all money advanced until a sufficient amount of lumber and logs

Where no question was made as to a hus-mortgage band's authority to act for his wife in the purchase of property, and a part of the consideration was paid by check in the name of a company consisting of husband and wife, and the wife did not urge that such payment was unauthorized, and no distinction was made between the husband and wife as to notice of the rights of a third person in such property, the wife, as well as the husband, took the property subject to such notice.

[Ed. Note. For other cases, see Husband and Wife, Cent. Dig. §§ 148-154; Dec. Dig. § 25.*]

Appeal in Chancery, Windham County; Alfred A. Hall, Chancellor.

Suit by Henry A. McLean and another against the Windham Light & Lumber Company and another, in which the Jamaica Lumber Company filed a cross-bill against complainants and defendant named. From a decree, both parties appeal. Affirmed.

Vt.)

MCLEAN v. WINDHAM LIGHT & LUMBER CO.

615

have been measured to equal in value the action. The 1st day of September came on amounts of the said advances," but that in no Sunday, and the second was a legal holiday. event shall any interest be paid after two The cashier declined to honor the note beyears from the date of the contract. A further cause it was dated on Sunday, and returned provision of importance to our inquiry is, it to the Jamaica Company on the 3d. The with slight changes of form, as follows: Sev- check was not used, and was subsequently en days prior to the maturity of the note canceled. In the arrangement between Hendue June 1, 1907, by notice in writing, the ry A. McLean and the Windham Company, Jamaica Company shall have the sole right McLean was to cancel a debt due him from to terminate this contract, if at that time the company of nearly $400, and pay $3,000 said company shall become satisfied that in cash. The note due the McLeans from there is not timber enough remaining on said the Windham Company on September 1st lots to equal in value the amount of the re- not having been paid because of the cashier's maining payments to H. A. McLean & Co., refusal to honor the note of the Jamaica or their assigns of record, figured on the Company as above stated, McLean did not above basis of price; but if the Jamaica Com- have the means to pay the $3,000; but he pany so elect to terminate this contract, and drew a check to the Windham Company for at the time of its termination shall not have $1,000 under date of September 3d, signing cut a sufficient amount of timber to equal the it H. A. McLean & Co., and receipted his bill payments already made, then it shall have against the Windham Company, and gave the right to continue cutting until the amount both check and receipt to D'Arcy. D'Arcy of timber so cut, together with the logs and had with him deeds of the property, and lumber now in the millyard, shall equal in these were placed in the hands of the cashvalue the amount of the payments already ier to be held in escrow until the amount made; but it is distinctly understood and agreed upon was paid. There was no other agreed that such right is limited to a period written memorandum of the transaction. of not over six months from said possible When McLean and Piper returned to Jamaica termination of the contract. It is further on the evening of the 2d, Piper told Hollenprovided that, upon the receipt of such no- beck, a partner in the Jamaica Company, tice by the Windham Company, the Jamaica that its note was dated on Sunday, and that Company shall immediately reconvey to the it would be returned to the company; and Windham Company by warranty deed all Hollenbeck saw McLean the same evening, such portions of the standing timber as re- and told him that they were going short of main after satisfying the Jamaica Company lumber, and did not want him to meddle with for such payment as it has made, and that the property. Neither McLean nor Piper ina pro rata adjustment of taxes shall then formed Hollenbeck of what had taken place be made between the two companies. The at Brattleboro that day. The chancellor has Jamaica Company did not terminate the con- found that some time previous to this, and tract as permitted by its terms, but continued pending the negotiations, McLean and Piper the cutting, and made all the payments ex- knew that the Jamaica Company claimed cept the last. There was in fact an insuffi- that the lumber was not holding out, and ciency of timber amounting, as found by the that there was a chance of a suit between the chancellor in general terms, to several hun- Jamaica Company and the Windham Comdred dollars. The Jamaica Company did not pany. On the 10th day of September Hollenbecome satisfied of this fact until some time beck and his solicitor, C. C. Fitts, met Mcin August. The chancellor has found that Lean and his solicitor, E. B. Gibson, and it might have become satisfied of it within Fitts then told Gibson that the Jamaica Comthe time limited, in the exercise of due dili-pany was ready to pay the note, if the Mcgence, by going through the several lots and estimating the amounts.

Leans would assign to it the note and mortgage without recourse. McLean declined to Prior to August 31st, Henry A. McLean assign, and commenced this foreclosure prohad negotaitions with Piper, attorney of the ceeding the same day, and obtained an inWindham Company, regarding a purchase of junction thereon against the Jamaica Comits interest in this property; and, in pur- pany on the following day. On the 17th the suance of these negotiations, McLean and Jamaica Company moved for a dissolution Piper went to Brattleboro September 2d, of the injunction, and also filed a motion to and saw D'Arcy, treasurer of the Windham be subrogated to the rights of the petitioners Company, for the, purpose of concluding the as against the Windham Company, and furdeal. The three then saw the cashier of nished a copy of this motion to the petitionthe Vermont National Bank, at which the ers' solicitors. On the same day the chanWindham Company's notes to the McLeans cellor ordered a suspension of the injunction were payable, and learned from him that on upon payment to the clerk of the amount the 31st day of August the Jamaica Company claimed to be due. On the 18th the Jamaica had sent to the bank a note for $2,000, dated Company paid to the clerk the amount due September 1st, together with a check for on the mortgage, with costs. The petitioners $4,307.20, which were intended to pay the took this money from the clerk on the 21st, note from the Windham Company to the and went directly to the town clerk's office McLeans due September 1st, and another of and discharged the mortgage. On the 24th its obligations not connected with this trans-McLean met D'Arcy and A. P. Carpenter, an

attorney of the Windham Company, at Green- | sufficiency of lumber is not of the essence of field, Mass., and paid the $2,000 remaining the agreement, and that its failure to give due on his purchase, and received newly pre- the stipulated notice does not disentitle it pared deeds of the property. The sum paid to relief in equity; that the payment to the was deposited with Carpenter to protect clerk of the amount of the last note was not McLean. The deeds were immediately for- a payment of the note otherwise than in warded to the town clerk of Jamaica, and support of its claim to subrogation and to were received and filed for record in the procure a suspension of the injunction; and afternoon of the 25th. The cross-bill of the that Henry A. McLean took the title of the Jamaica Company, in which the McLeans Windham Company with notice, and can and the Windham Company are made de- stand in no better position than his grantor. fendants, was served on Henry A. McLean It is clear that McLean took his deed with in the evening of the same day. This prayed notice of the claims of the Jamaica Company. for an order restraining the defendants It is also clear that the Jamaica Company's therein from completing their trade, and from payment to the clerk was not a payment of changing in any way the record title of the the note in acknowledgment of an unconmortgaged property, and for a final decree ditional obligation to pay it. reinstating the mortgage and subrogating the Jamaica Company to the rights of the McLeans under it. The chancellor filed a decree sustaining the claims of the Jamaica Company, and appointed a special master to find the difference between the amount paid by the Jamaica Company on its contract with the Windham Company and the value of the lumber and timber, cut and standing, sold and conveyed to the Jamaica Company by the Windham Company; the difference representing the amount of loss sustained by the Jamaica Company. The master reported a difference of $2,160.80, with an alternative finding of a larger amount.

[1] But that company, after becoming satisfied that there was an insufficiency of lumber, undertook to pay the last note on the day it became due, and was prevented from paying it solely by an accident. The orators argue that this was an interpretation of the contract by the Jamaica Company which the court will follow in determining its rights. But it is not every act of a party indicative of an understanding of the contract in accord with the claim of the other party that will be given this effect. One who goes beyond the requirement of his contract in circumstances of doubt ought not from that fact alone to have his act given the ef

fect of a concession. In this case the Jamai

in the time limited, that its safest course was to pay the amount of the remaining note at its maturity, and proceed with the cutting until the timber was exhausted; and having thus reimbursed itself as far as possible, and demonstrated the fact and extent of the insufficiency, seek such remedy as the case might then afford.

It appears from the above statement that the relation between the Windham Company ca Company might reasonably consider, aftand the McLeans was that of mortgagor ander its failure to terminate the contract withmortgagee, and that the obligation secured was the payment of a certain indebtedness in installments; that the Jamaica Company bought of the mortgagor an interest in the incumbered property upon an undertaking to pay this indebtedness as it became due, with further provisions of obligation and limitation, all evidenced by a writing to which the McLeans were not a party; and that Henry A. McLean, one of the mortgagees, subsequently bought the mortgagor's equity in the property. The Jamaica Company claims to be subrogated to all the rights which the orators obtained by their mortgage from the Windham Company. The orators claim all the rights of the Windham Company through Henry A. McLean's purchase of that company's equity. So the case turns upon a determination of the rights of the Windham Company under its contract with the Jamaica Company. The orators contend that the agreement of the Jamaica Company, except for the right of rescission, was an unconditional undertaking to pay the three remaining notes, and thus free the property of the Windham Company from incumbrance; and that in completing the payment after the failure to exercise its option it did no more than the contract required, and so is not entitled to subrogation. The Jamaica Company contends that the extent of its payment on the mortgage was to depend upon the amount of lumber obtained; that the provision limit

The orators contend, further, that any construction of the contract which would give the Jamaica Company the right of subrogation is made impossible by the express provision that each note, when paid, shall be marked as canceled and returned to the Windham Company, and that a corresponding partial release of the mortgaged premises shall be filed for record at the time of each payment. But we think this provision cannot be viewed apart from the other stipulations of the contract, and be accepted as a conclusive expression of the intention of the parties. It is true that, if the procedure agreed upon by the parties to the contract were carried out by the McLeans, each note would be canceled on payment and a proportionate part of the security be discharged. But the contract which provides for this final disposition of the notes and security is equally explicit regarding further rights of the Jamaica Company growing out of the payments. The Jamaica Company is to pay the notes as they become due, but is to have