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In covenant against a lessee for not repairing, the declaration stated, that the defendant by indenture covenanted to repair the demised premises, and at the end of the term to surrender up the same in good repair, the lessor (the plaintiff) finding timber sufficient for such repairs the breach assigned was for not repairing; plea, that the plaintiff did not find timber sufficient; on demurrer, it was adjudged, that the finding the timber was a thing in its nature necessary to be done first, and therefore a condition precedent, the performance of which ought to have been averred in the declaration (a). So where in a covenant on an indenture of lease for seven years for non-payment of rent, it appeared that the lease contained a proviso, that if the lessee, at the end of the first three or five years, should be desirous of quitting, and should give six months' notice thereof, before the expiration of the first three or five years, then, from and after the expiration of the first three or five years, and payment of all rents, and performance of the covenants on the part of the lessee, the indenture should be void; it was held, that the payment of rent, and performance of the other covenants, by the lessee, were conditions precedent to the lessee's determining the term at the end of the first three years, and that merely giving six months' notice, expiring with the first three years, was not sufficient for that purpose; Lord Kenyon, C. J., observing, that it had frequently been said, and common sense seemed to justify it, that conditions were to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument; and that technical words, if there were any to encounter such intention (and there were not in this case), should give way to that intention; that it was impossible to read this lease, without seeing, that the parties intended, that the tenant should do every thing required of him, before he could put an end to the lease (b). So where by a policy of assurance against fire it was stipulated, that the assured sustaining any loss by fire should procure from the minister, churchwardens, and some reputable householders of the parish, a certificate of his character, and of their belief that the loss happened without fraud; it was held, that the procuring such a certificate was a condition precedent to the right of the assured to recover, and that it was immaterial, that the minister and churchwardens wrongfully refused to sign the certificate (c); Lord Kenyon observing,

(a) Thomas v. Cadwallader, Willes, 496. (b) Porter v. Shepherd, 6 T. R. 665. Acc. Friar v. Grey, 4 H. L. C, 565.

(c) Where the obtaining a certificate is a condition precedent, the want of it is a good defence, even although it be withheld by collusion with the defendant. Milner v. Field, 5 Exch. 829. It is not uncommon in contracts, especially with companies, to insert a proviso that the contacts shall be performed to the satis

faction of some third party, e. g., an engineer or surveyor. See Grafton v. Eastern Counties Railway, 8 Exch. 699. Such a proviso of course does not preclude any additional stipulation as to the manner in which the contract is to be performed, e. g., the quality of the goods to be supplied. Bird v. Smith, 12 Q. B. 786. And see Avery v. Scott, 8 Exch. 487; 5 H. L. Cas. 811, S. C.

that the court was called upon to give effect to a contract made between two parties, and that, if from the terms of it they could discover the intention of the parties to be, that the procuring the certificate by the assured should precede his right to recover, they were bound to give judgment accordingly (d).

So where in covenant on a charter-party to recover the value of a ship against defendant, to whom she had been let to freight for the purpose of carrying government stores to America, the declaration stated a covenant, that, if the ship were taken during the time she was in his Majesty's service, and it should appear to a courtmartial that the master and ship's company had made the utmost defence they were able, the value of the ship should be paid by the defendant; and then averred a capture, the master and ship's company having made the utmost defence they were able, and that it would have appeared to a court-martial, &c., if the defendant had thought proper to have had an inquiry made in that respect by a court-martial. The defendant pleaded, that it had not appeared, &c. On demurrer to the plea, the court gave judgment for the defendant; observing, that the charter-party annexed an express condition, that it should appear to a court-martial, &c., and therefore the plaintiff was bound to show that it had appeared, or that it arose from the default of the defendant that it had not (e). So where in covenant on a charter-party of affreightment, whereby the defendant agreed to pay to the plaintiff at a certain rate for deals "delivered at Liverpool, &c.; the freight to be paid, one-fourth in cash on her arrival, and the remainder by an acceptance on London at four months' date," the declaration averred, that before the ship's arrival at Liverpool, the ship was wrecked, whereby the deals were obliged to be put on shore for the preservation thereof; which deals the defendant afterwards accepted, whereby he became liable to pay to the plaintiff a proportionable part of the freight for the carriage of the said deals: a plea, that no part of the said deals was delivered at Liverpool, was held good (f); Lawrence, J., observing, that "when a ship is driven on shore, it is the duty of the master either to repair his ship, or to procure another, and having performed the voyage, he is then entitled to his freight; but he is not entitled to the whole freight, unless he perform the whole voyage, except in cases where the owner of the goods prevents him; nor is he entitled pro ratâ, unless under a new agreement. Perhaps the subsequent receipt of these goods by the defendant might have been evidence of a new contract between the parties; but here the plaintiff has resorted to the original agreement, under which the defendant only engaged to pay in the event of the ship's arrival at Liverpool. That event has not hap

(d) Worsley v. Wood, 6 T. R. 710.
(e) Davis v. Mure, cited 1 T. R. 642.
VOL. I.

(f) Cook v. Jennings, 7 T. R. 381. Acc. Liddard v. Lopez, 10 East, 525.

N N

pened, and therefore the plaintiff cannot recover in this form of action" (g).

By charter-party the freighter covenanted to pay to the owner freight at so much per ton per month, for six months at least, and so in proportion for less than a month, or for such further time as the ship might be in the service of the freighter, until her final discharge, loss, capture or being last seen or heard of: so much of the freight as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods; it was held, that this constituted one entire covenant, and that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight; and that the ship having been lost on her outward voyage, the owner was not entitled to recover freight at so much per calendar month to the day of the loss (h).

So the cases are uniform to show that if a person undertakes for the act of a stranger, that act must be done (i). If A. be bound to B. to pay ten pounds to C., A. tenders to C. and he refuseth, the bond is forfeited. 1 Inst. 208, b. If a man be bound in an obligation, with condition to enfeoff B. (who is a mere stranger) before a day, the obligor doth offer to enfeoff B. and he refuseth, the obligation is a forfeit, for the obligor hath taken upon him to enfeoff him, and his refusal cannot satisfy the condition, because no feoffment is made. 1 Inst. 209, a.

From the preceding cases it may be collected, that wherever there is a condition precedent on the part of the plaintiff, performance, or that which is equivalent to performance, must be alleged and proved, otherwise the action cannot be supported; and, consequently, the defendant may plead non-performance of the condition precedent, in bar of the action; or, if the averment of performance be entirely omitted, the defendant may take advantage of it on demurrer. The averment of performance may, however, since the abolition of special demurrers, be made in quite general terms. Ante, p. 121.

"Where a person, by doing a previous act, would acquire a right

(g) "It is a settled rule, even in the case of deeds, that if there be a condition precedent in a deed, and it is not performed, and the parties proceed with the performance of other parts of the contract, although the deed cannot take effect, the law will raise an implied assumpsit. Upon this ground freight is daily recovered in actions of assumpsit on implied promises, substituted for the charter-parties by deed." Per Cur. in Burn v. Miller, 4 Taunt. 748. But this

cannot be done where the requirements of the deed have been complied with, the remedy in such a case being on the deed. Shack v. Anthony, 1 M. & S. 573. See further on the apportionment of freight, Abbott on Shipping, (6th edit.) 392, et seq.; Ward v. Felton, 1 East, 507; Christy v. Row, 1 Taunt. 300; Ritchie v. Atkinson, post, 550.

(h) Gibbon v. Mendez, 2 B. & Ald. 17. (i) Per Lawrence, J., Worsley v. Wood, 6 T. R. 710.

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to a debt, or duty, by a tender to do the previous act, if the other party refuse to permit him to do it, he acquires the right as completely as if it had actually been done." Per Lord Ellenborough, C. J., in Smith v. Wilson, 8 East, 443. So if the plaintiff has been discharged by the defendant from the performance of the condition. Laird v. Pim, 7 M. & W. 474. So where the plaintiff has been prevented from the performance by the neglect and default of the defendant. Hotham v. East India Company, 1 T. R. 645.

Concurrent Acts (k).-Where reciprocal acts or covenants are to be performed by each party at the same time, they are technically termed concurrent acts or covenants; and in this case, as well as in the case of dependent covenants, one party cannot maintain an action against the other, without averring performance, or that which is equivalent to performance, or at all events a readiness and willingness to perform the acts or covenants to be performed on the plaintiff's part. As where A. covenanted that he would, on or before a certain day, convey land to B., by such conveyance as B.'s counsel should advise; in consideration of which B. covenanted to pay A., at or upon the execution of the conveyance, a certain sum of money; it was held, that A. could not maintain covenant against B. for non-payment of the money without showing that he had conveyed; or that he was ready at the day to have conveyed, what he had covenanted to do, and that he had done every thing which lay upon him to do for that purpose, but that he was prevented from so doing by some act, or omission, or neglect, on the part of the defendant (1). But where it was agreed by specialty between A. and B. that B. should pay A. a sum of money for his lands on a particular day, it was held to be an independent covenant, and that A. might bring an action of covenant or debt for the money before any conveyance by him of the land (m). So where the defendant by a distinct instrument, e. g., a promissory note, agrees to pay the money on a particular day (n).

In covenant for not accepting stock of the Hudson's Bay Company, at the Company's house, on a certain notice, the plaintiff averred that he gave notice to the defendant to come there and accept the stock, and that the plaintiff was ready there at the day, and offered to transfer it, but that the defendant did not come to accept it, nor had paid the price agreed, &c.; upon demurrer, the declaration was held ill, for where the party to whom the act is to be done does not come to the time and place appointed, the other ought to show that he came at the last time which the law has appointed for doing the act, and if he came there before he ought to show that he continued there to the last time; and that, as the

seq.

(k) See ante, "Assumpsit"" p. 124, et

319. Acc. Mattock v. Kinglake, 10 A. & E. 50.

(1) Heard v. Wadham, 1 East, 619.
(m) Pordage y. Cole, 1 Wms. Saund.

(n) Spiller v. Westlake, 2 B. & Ad. 155.

stock could only be transferred when the Company's house was open, which was at stated hours of the day, the plaintiff should have averred the usage of the Company in that respect, and that he came there at the proper time and stayed there till the house was shut (o).

Mutual and Independent Covenants. Where covenants are mutual and independent, one party may maintain an action against the other for a breach of covenant, without averring a performance, or any thing equivalent to a performance, of the covenants on his part; and the defendant cannot plead non-performance of such covenants on the part of the plaintiff in bar of the action (p).

The plaintiff, who was master of a vessel, covenanted to make use of the same in the coal trade, for the defendant's service; and that during twelve calendar months (the time the vessel was hired for) he would pay all the seamen's wages yearly; in consideration whereof, the defendant covenanted to pay the plaintiff 421. every month during the year; the non-payment whereof was the breach assigned. The defendant pleaded, that the plaintiff' did not pay the seamen according to his covenant. On demurrer, it was insisted by the plaintiff, that these were mutual covenants, and that though the words were "in consideration thereof," yet, in the nature of the thing, this could not be a condition precedent, for the payment of the seamen, by the plaintiff, was to be yearly, of the plaintiff, by the defendant, monthly; so that from the manner of covenanting it was impossible the performance of the act to be done by the plaint ff should be necessary to entitle him to an action against the defendant for not doing the act he had covenanted to do. Judgment for the plaintiff; Lord Hardwicke, C. J., observing, that there could not be any condition precedent here, for the reason given; for that these cases did not depend so much on the manner of penning the covenants, as the nature of them (g).

The plaintiff, in consideration of 2501. paid by the defendant, and a further sum of 250l. to be paid in the manner thereinafter mentioned, covenanted that he would, with all possible expedition, teach the defendant a certain method of bleaching materials for making paper, and would also permit him to use a patent which the plaintiff had taken out for that purpose; in consideration whereof the defendant covenanted that he would, on or before the 25th of February, 1794, or sooner, in case the plaintiff should before that time have sufficiently taught defendant the bleaching process, pay the plaintiff the further sum of 2501. Demurrer, that it was not averred that the plaintiff had instructed defendant in the

(0) Lancashire v. Killingworth, Lord Raym. 686. P.rformance of conditions may now be averred in general terms (supra, 546), but the above case is still

useful as showing what evidence is neces-
sary in such a case.

(p) Dawson v. Myer, Str. 712.
(q) Russen v. Coleby, 7 Mod. 236.

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