Northrup v. Northrup — 6 Cow. 296

Majority

p. 296

Northrup against Northrup.

UTICA,

Aug. 1826.

Headnote

Where the defendant covenanted with the plaintiff to pay certain money to T. on a certain day; and the plaintiff covenanted that on the defendant’s bo paying, he, the plaintiff, would give up and discharge a certain bond and mortgage; held, thai the payment was a condition precedent to the performance on the part of the plaintiff; who might sue for the nonpayment, without shew, ing a performance, or offer to perform on his part; nor could the defendant plead the want of such performance or offer to perform.

Ok demurrer to the defendant’s plea. The plaintiff declared on a covenant, which, on oyer, was as follows : The defendant covenanted to pay certain rent due and in arrear, to one D. Tomlinson, on a certain farm, and all which should become due on the 25th of March, 1825; the whole to be paid on that day ; and the plaintiff covenanted, that on the defendant’s so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage. The action was for not paying the rent at the day.

Plea, that the plaintiff did not, on the 25 th day of March, 1824, give up and discharge the bond and mortgage, nor tender, nor offer to do so, on that day, or before or since.

General demurrer and joinder.

M. T. Reynolds, in support of the demurrer.

A. L. Jordan, contra,

cited Parker v. Parmele, ( 20 John. 130 , and the cases there referred to.)

Curia, per

The plea is bad. The payment of the money to Tomlinson, on the day specified, is clearly a condition precedent. The performance by the plaintiff of his part of the agreement is not necessarily simultaneous ; but was naturally to be subsequent. A general averment of his readiness to perform, is all that

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can be necessary or proper. To aver a tender was certainly not necessary.

Lord Mansfield, in Jones v. Barkley, (Doug. 690,) makes three classes of covenants ; 1. Such as are mutual and independent, where separate actions lie for breaches on either side ; 2. Covenants which are conditions, and dependent on each other, in which the performance of one depends on the prior performance of the other ; 3. Covenants which are mutual conditions to be performed at the same time, as to which the party who would maintain an action must, in general, offer or tender performance. I consider the plaintiff’s covenant as clearly belonging to the second class. The defendant’s covenant was absolute.

The cases cited by the defendant’s counsel relate to the third class.

The plaintiff must have judgment, with leave to the defendant to amend on payment of costs.

Judgment for the plaintiff.