
164 U.S. 301 (1896)
COUGHRAN
v.
BIGELOW
No. 53.
Supreme Court of United States.
Argued and submitted May 7, 1896.
Decided November 30, 1896.
ERROR TO THE SUPREME COURT OF THE TERRITORY OF UTAH.
*307 Mr. C.W. Bennett for plaintiffs in error submitted on his brief.
Mr. Arthur Brown for defendants in error.
MR. JUSTICE SHIRAS, after stating the case, delivered the opinion of the court.
The ruling of the Supreme Court of the Territory of Utah in affirming the action of the trial court ordering a nonsuit of plaintiffs is assigned as error. It was held by this court in Elmore v. Grymes, (1 Pet. 469,) that a Circuit Court of the United States had no authority to order a peremptory nonsuit against the will of the plaintiff. This case has been followed in repeated decisions. Crane v. Morris, 6 Pet. 598; Castle v. Bullard, 23 How. 172.
The foundation for those rulings was not in the constitutional right of a trial by jury, for it has long been the doctrine of this court that in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any upon which a jury can properly proceed to find a verdict for the party producing it upon whom the onus of proof is imposed, and that, if the evidence be not sufficient to warrant a recovery, it is the duty of the court to instruct the jury accordingly, and, if the jury disregard such instruction, to set aside the verdict. Parks v. Ross, 11 How. 362; Schuchardt v. Allens, 1 Wall. 359; Pleasants v. Fant, 22 Wall. 116, 120. And, in the case of Oscanyon v. Arms Co., 103 U.S. 264, it was said by Mr. Justice Field, in delivering the opinion of the court, that *308 the difference between a motion to order a nonsuit of the plaintiff and a motion to direct a verdict for the defendant is "rather a matter of form than of substance."
That the cases above cited, which held that the Circuit Court of the United States had no authority to order peremptory nonsuits, were based, not upon a constitutional right of a plaintiff to have the verdict of a jury, even if his evidence was insufficient to sustain his case, but upon the absence of authority, whether statutory or by a rule promulgated by this court, is shown by the recent case of Central Transportation Co. v. Pullman's Car Co., 139 U.S. 24, 38, where it was held that, since the act of Congress of June 1, 1872, c. 255, § 5, 17 Stat. 197, reönacted in § 914 of the Revised Statutes, courts of the United States are required to conform, as near as may be, in questions of "practice, pleadings and forms and modes of proceeding" to those existing in the courts of the State within which the trial is had, and a judgment of the Circuit Court of the United States for the Eastern District of Pennsylvania, ordering a peremptory nonsuit, in pursuance of a state statute, was upheld. It is the clear implication of this case that granting a nonsuit for want of sufficient evidence is not an infringement of the constitutional right of trial by jury.
As there was a statute of the Territory of Utah authorizing courts to enter judgments of peremptory nonsuit, there was no error in the trial court in granting the motion for a nonsuit in the present case, nor in the judgment of the Supreme Court affirming such ruling; if, indeed, upon the entire evidence adduced by the plaintiffs enough did not appear to sustain a verdict.
We are thus brought to the question whether the trial court was mistaken in its view of the plaintiffs' evidence.
The facts of the case are somewhat peculiar. The suit is against sureties on a bond, conditioned for the performance by the principals of the terms of a contract for the sale of land to the parties plaintiff. The chief difficulty arises from the fact that there is a discrepancy between the terms of the contract, as they appear in the written instrument itself, and as they are described or narrated in the bond.
*309 The contract is clear and unambiguous. It is dated April 26, 1890. After acknowledging receipt of thirty-three hundred and thirty-three dollars as part purchase price of an undivided one tenth part of a certain tract of land, describing it, it proceeds as follows: "The full purchase price being ten thousand dollars, to be paid as follows, $3334 on October 1, 1890, and $3333 on April 1, 1891, with interest at eight per cent per annum on deferred payment from October 1, 1890. But in case said land is sold before October 1, 1890, then the last two payments are to bear interest from April 1, 1890, to the date of sale. And in case any payments are not made as above provided, the amount paid herein is forfeited, and this receipt is from that time void and inoperative, and when the payments are made as above provided the land to be conveyed to said Eugene W. Coughran and Nathan H. Cottrell, or their assigns, with good title free from incumbrances."
The obvious meaning of these provisions is that if the sum of $3334 is paid on October 1, 1890, and the sum of $3333 is paid on April 1, 1891, with interest from October 1, 1890, then it shall be the duty of the vendors to convey the property to the vendees or their assigns with a good title free from incumbrances; but that if said deferred payments are not made, as provided for, then the amount previously paid shall be forfeited and the contract become void.
The bond, bearing even date with the contract, contains the following language: "The condition of the above obligation is such that the above bounden E.A. Reed and H.H. Henderson, on or before the first day of October next, or in the case of their death before that time, if the heirs of the said E.A. Reed and H.H. Henderson, within three months after their decease, shall and do upon the reasonable request of the said Eugene W. Coughran and Nathan H. Cottrell, their heirs or assigns, make, execute and deliver, or cause so to be made, a good and sufficient warranty deed, in fee simple, free from all incumbrance, and with the usual covenants of warranty, of the following-described premises,... provided the said Eugene W. Coughran and Nathan H. Cottrell comply with their part of the contract this day made and delivered to them *310 by the said E.A. Reed and H.H. Henderson, and a copy of which is hereto attached, then the above obligation to be void; else to remain in full force and virtue."
It will be observed that, by the terms of the contract, the deed of conveyance was not to be made until the purchase money had been paid in full, but the recital in the bond calls for the making and delivery of the deed on or before the first day of October, 1890.
The solution of the difficulty thus created will be found by reading the bond in the light of the contract, to secure the performance of which was the purpose of the bond. That contract provided, indeed, that the vendors should execute and deliver a proper deed, but also provided that the title should not pass until the deferred payments were made. To construe the bond as compelling a conveyance before such payments were made would deprive the vendors of the security given them by retaining the title and also of their stipulated right to forfeit the cash payment and rescind the sale, if the payments were not made as provided in the contract.
The obligatory portion of the bond was expressly made dependent on the proviso that Coughran and Cottrell should comply with their portion of the contract that day made and a copy of which was attached, one of the terms of which was that the sum of $3334 should be paid on October 1, 1890. This payment was not so made on that day. The acceptance by the vendors of the payment subsequently made, on or about October 12, was, of course, a waiver by them of their right to rescind and declare a forfeiture, but such waiver did not bind the sureties, who were relieved from liability by the failure of the vendees to perform the precedent act of payment at the time provided in the contract. Bank of Columbia v. Hagner, 1 Pet. 455; Kelsey v. Crowther, 162 U.S. 404.
The contention on the part of the plaintiffs in error that the alleged inability of the vendors to make a conveyance of the character called for by the contract relieved them from the duty of payment, is only true so far as they might choose to make such inability the ground of a right to rescind. They could not elect to abide by and enforce the contract, except *311 upon performance or tender of payment on their part. Telfner v. Russ, 162 U.S. 171; Kelsey v. Crowther, 162 U.S. 404. These were the views that prevailed in the Supreme Court of the Territory, and its judgment is accordingly
Affirmed.
