M'Gaunten v. Wilbur — 1 Cow. 257

Majority

p. 257

M’Gaunten against Wilbur.

Headnote

Where W, on the 31 st Oct. hired a house of G, from lsi Nov. for six months, and. agreed to pay §50, in advance, and secure §100 dollars in a manner specified j but omitted to pay, or give security, till 3d Nov. when G let the house to another ; held, that the contract was at an end, though W mentioned, at the time of the contract, that he did not want possession under a fortnight.

The payment, &c. is in such case a condition precedent, not to his entering into possession, but to his bemg entitled to the possession.

And the agreement was, accordingly, construed to mean a payment, See. before the lsi of November.

0:j certiorari to the Marine Court of the city of New York. The defendant in error, on the 3 lsi Oct. 1820, hired of the plaintiff in error, a house in the city of New-York, for <3 months, from the lsi day of Nov. following, for which he agreed to pay $150 ; $50 in advance—the residue to be secured by a bill of sale of his furniture, in nature of a mortgage. He mentioned at the time, that he did not want possession under a fortnight. On the 3d Nov. the plaintiff in error, not having received the $50 and security, let the house to another tenant. On the 3th or 10th Nov. the defendant in error tendered to the plaintiff in error the $50 and bill of sale, demanding possession of the house, which was refused. In assumpsit for breach of this agreement, a verdict and judgment were rendered for the defendant in error, with $100 damages.

E. Aver ill, for the plaintiff in error.

W. A. Seely, contra.

The judgment must he reversed. The agreement was, that the 50 dollars rent should be paid in advance. This not having been done, and the security not being given on the 3d day of November, the plaintiff in error had a right to consider the contract at an end, and to let his house to any other person. The remark of the defendant in error, that he did not want the possession under a fortnight, did not vary the agreement. This was, to pay the 50 dollars, &c. not before he entered into possession, but before he was entitled to possession, which was on the lsi day of November.

Judgment reversed.