Green v. Reynolds

ecute and deliver to the defendant a good and sufficient deed for eighty-four acres of land, in Pittstown in the county of Rensselaer, on the first day of May, 1806. The defendant on his part, covenanted to pay to the plaintiff, one thousand dollars, on the first day of May, 1806, and the further sura of eight hundred and seventy-five dollars, on the first day of May, 1812. The declaration was for the non-payment of the one thousand dollars, but did not aver that the plaintiff had tendered a deed on the first day of May, 1806. There was a general demurrer to the declaration, and joinder in demurrer.

In the case of Jones v. Barlcley,^[8] Lord Mansfield observed , that there were three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other, for a breach of the covenant in his favour, and where it is no excuse for the defendant to allege a breaeh of the covenant, on the part of the plaintiff. 2. Such covenants as are conditions, and dependent, in which the performance of one depends on the prior performance of another, and until the prior condition is performed, the other party is not liable to an action on his covenant. 3. Such as are mutual conditions to be performed at the same time, where the plaintiff must show that he was ready, and offered to perform on his part, and the defendant neglected or refused to perform on his part; and may maintain his action, though it is not certain that either is obliged to do the first act. These distinctions have not been exactly preserved in the late decisions, but dependent covenants and mutual conditions, are considered as meaning the same thing.^[9] It is only necessary for the defendant to establish that the covenants in this agreement are dependent, or were mutual conditions. Whether covenants are dependent or not, must be decided by the good sense of the case, and the evident meaning of the parties.^[3] No contract can be carried beyond the intent of the parties at the

four acres of land, and R covenanted (o pay to G one thousand dollars on the 1st May, 1806, &. eighthundred and seventy-five dollars on. the 1st May, 1812. In an action of covenant bro’tby G, for the one thousand dollars,itwasheM that these were dependent covenants, and that the plaintiff must deliver, or tender & deed to thedefendant, before he could be entitled to bring' his action for the money.

time;^[4] but must be performed according to such intent, so far as it is to be collected from the instrument.^[5] In Callenel v. Briggs,^[6] which is the leading case on this subject, Lord Holt observes, that though there be mutual promises, yet if one thing be the consideration of the other, a performance is necessary to be averred. That was on ¿ contract to transfer stock ; and the principle there laid down was recognized in Morton v. Lamb,^[7] by Lord, Kenyon’ who said, that whether the covenant was independent or not, was to be determined from the good sense of the case. The delivery of the corn, and the pay-mentofthe price, were held to be concurrent acts, tobe done at the same time, and that each party must aver a performance, or an offer to perform, before he could maintain his action. The case of Goodison v. Nunn,^[8] is perfectly analogous to the one now before the court.

Kent, C. J. It has been decided in this court, in regard to a contract for the delivery of stock, that the delivery and payment of the money were dependent covenants, and that the plaintiff must aver a performance, or an offer to perform, before he could bring his action;

Allen was stopped by the court, who desired to hear the other side.

The principle laid down in the authorities cited by the counsel, on the other side, apply to cases where the whole consideration is to be paid, not where a part of the money is to be paid on the day the deed is to be delivered,.and the residue afterwards. In the present case a part only of the money was to be paid, so that the covenants are not mutual'and dependent conditions, but each party has his remedy without averring a performance.^[9]