“Courts are disinclined . . . to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed.”
How later courts described this case
- “Courts are disinclined . . . to construe the stipulations of a contract as conditions precedent, unless compelled by the language of the contract plainly expressed.”
Written by the judges who cited it.
The opinion
BEATTY, C. J., concurring.
I concur in the judgment. The intervention of J. S. Antonelle is disposed of by the find.
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ing of the court upon sufficient evidence that the fifteen thousand dollars paid by plaintiff to defendant was her money.
The intervention of Antonelle
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Doe is without merit. There is no pretense that this fifteen thousand dollars was ever a portion of the firm assets, and even if it had been the individual property of Mr. Antonelle, the defendant would have been bound to apply the firm assets in its hands as far as they would go to the satisfaction of its claim against the firm before resorting to his individual property to supply the deficiency. But it was the property, as now determined, of the plaintiff. She did not volunteer to pay it out on the firm’s debts, but being in a position requiring a sacrifice of a portion of her property in order to recover the possession and use of the balance she simply made a compromise with defendant by which she advanced fifteen thousand dollars upon its claim under an agreement providing in substance and effect that she should be repaid so much of her advance as might remain after satisfaction of the defendant’s judgment against the firm—the partnership assets to be first applied thereon as far as they would go. It is true the agreement was not put in this form, but it was to this effect and it was an agreement which, so far from violating any right of Antonelle
&
Doe, was greatly to their advantage. Every dollar paid by this arrangement on the firm indebtedness (about seven thousand dollars, according to the findings) was in effect a gift from plaintiff to them, and their claim to the surplus, based wholly on the mere form of the stipulation, and regardless of its substance and effect, is entirely without merit.
As to the defendant’s appeal, the point which it most insists-upon is that the plaintiff commenced her action without having performed the condition precedent of obtaining her husband’s written consent to the payment of the fund in controversy to her. It is evident that this proviso was inserted in the agreement merely as a precaution against a double liability in ease the husband should make the claim which the defendant had itself made; that is, that the fund belonged to him. The alternative of her failure to procure his consent was not that the defendant should keep, and appropriate to its own use, a fund to which it never had any right, but merely that it should not be obliged to pay until 'it was
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determined in some manner binding upon the adverse claimants which of them bad the superior right. The failure of the plaintiff to get her husband’s consent did hot deprive her of a right of action, hut only of the right to receive the money on her mere demand, and without a judgment binding upon her husband and establishing her right. In this action such a judgment has been given by a court having jurisdiction of the subject-matter and of the parties. The defendant in paying the plaintiff’s judgment is fully protected against any claim by the intervener.