Bennet v. Executors of Pixley — 7 Johns. 249

Majority

p. 249

Bennet against The Executors of Pixley.

NEW-YORK

Nov. 1810.

Headnote

Where mutual cuveuants go on~ ly to a part of the 000.si(lera-lion, and a breach of that part may be paid for in damages, the defendant cannot set it up as a condition precedent; but the covenants in such case are regarded as independent. In an action of covenant, the plaintiff declared, that in consideration of 400 dollars paid to the defendant, he promised and agreed to convey, on the 1st December, I 8O'2, to the plaintiff, a certain lot of land lying in JV~ the saute to be appraised by .~2. and Ii.; and if appratscd at snore than 400 dollars, the plaintiff was to pay to the defendant the surplus; and it at less than that sum, so much was to be deducted, &c. and averred that he was ready to receive a deed; but the defendant did not convey, he. On demurrer, the declaration was held good.

-THIS was an action of covenant. The declaration 3tated, that the testator, on 22d Februar9, 1802, at Che

p. 250

nango, &c. by his certain writing obligatory, sealed, See. pro* mised and agreed with plaintiff, in consideration of 400 dollars to him paid, to convey to the plaintiff, on or before the 1st day of December then next, one certain lot of land ... in Nanticoke, the same to be appraised by G. Storer and Elijah Higbe; and if said lot of land should be appraised over the sum of 400 dollars, &c. same was to be made up to the testator, and if it was appraised under 400 dollars, the sum which it fell short was to be deducted out of certain notes given by Lombard and yones. The plaintiffaverred, that he was ever ready to receive a deed of said lot, until the 1st day of December was past, and that the testator did not deed or convey to him the said lot, and that the testator was in fell life until after the 1st December, and so the testator broke his covenant, See. To this declaration there was a general demurrer and joinder.-

Van Vechten, in support of the demurrer.

Sedgwick, contra.

The two principal objections to the declaration in this case are, 1. That the plaintiff has not averred that the lands were appraised, or that he was ready to pay the overplus moneys (if any) upon such appraisement j 2. That the land is not described with the requisite certainty.

There does not appear to be sufficient weight in either of these objections.

1. Assuming that there was a covenant on the part of the plaintiff, to pay for the amount of the appraisement beyond the 400 dollars, yet it only went to a part of the consideration, and the rule is settled, that where mutual covenants go only to a part of the consideration, and a breach of that part may be paid for in damages, the defendant shall not set it up as a condition precedent. The covenants in such case are to be regarded as independent. (Boone v. Eyre,

p. 251

1 H. Black. 273. n. Campbell v. Jones, 6 Term Rep. 570. 1 Saund. 320. n. (c).) The damages sustained would be very unequal if the covenant of the plaintiff was held to be a condition precedent, He in the mean time loses his 400 dollars, and the testator might not lose any thing. The plaintiff had in part (at least) executed the bargain, by paying the 400 dollars, and the testator ought not to keep that sum without conveying the land,because, that possibly there may be a surplus to receive, and he may sustain some damage by the plaintiff not tendering that surplus. This would be unjust. He is bound to convey, and he may then resort to his action, if a surplus should be found to exist upon the appraisement.

2. The testator covenanted to convey “ one certain lot of land lying in Nanticoke," and he has received what was presumed at the time to be the full consideration. It cannot surely lie in his mouth to say that he cannot convey because of uncertainty in the description. The grant would be good by the description in the covenant; and the grantee could render it effectual by averment, as to the certainty of the place and of the lot; id certum est quod certum reddi potest.

Judgment must, therefore, be rendered for the plaintiff.