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W. H. & G. 596; Graves v. Legg, 25 Eng. Law & Eq. 556; Tileston v. Newell &c. 13 Mass. 406; Watchman &c. v. Crook &c. 5 Gill & J. 255; Philad'a W. & B. Railroad Co. v. Howard, 13 How. 339.

Generally speaking, where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions; the one precedent to the other. 1 H. Bl. 273, note; Cutter v. Powell, 6 T. R. 320; 2 Smith's Lead. Cases 11; Lilley v. Elwin, 11 Adol. & El. N. S. 755; 63 Eng. Com. Law Rep. 755; Dakin v. Williams, 11 Wend. 70; Couch v. Ingersoll, 2 Pick. 302.

2. Particular rule when day appointed for payment of money is after consideration for it is to be performed.

When a day is appointed for the payment of money and the day is to happen after the thing which is the consideration of the money is to be performed, no action can be maintained for the money before performance. Thorpe v. Thorpe, 1 Salk. 171, 2d resolution; 1 Ld. Raym. 662; 1 Saund. 319, 20, note 4; Dey v. Dox, 9 Wend. 133. Under this rule, where there is an agreement for the sale of land, the making or tendering a conveyance must precede an action for the purchase money, if the meaning of the agreement appears to be that the vendor shall convey before the purchase money is payable. This sufficiently appeared in Brockenbrough v. Ward's adm'r, 4 Rand. 355, notwithstanding it was stipulated that the vendor should convey in convenient time; for this was limited and explained by a subsequent stipulation that the vendee should give a mortgage to secure the purchase money at the time it became due.

3. Particular rule when day appointed for paying money or doing any act is before consideration for it is to be performed.

If a day be appointed for payment of money or part of it, or for doing any other act, and the day is to happen or may happen before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money or for not doing such other act before performance; for it appears that the party relied on his remedy and did not intend to make the performance a condition precedent. Thorpe v. Thorpe, 1 Salk. 170; 1 Ld. Raym. 662; Comyn 98; 12 Mod. 455; 1 Chitty's Pl. 313; Dox v. Dey, 3 Wend. 360; Couch v. Ingersoll, 2 Pick. 300; Cobbs v.

Fontaine, 3 Rand. 489; Burney v. Galloway, 11 Iredell 53; Decker v. Jackson, 6 Man. Gr. & Scott 114; 60 Eng. Com. Law Rep. 114; Dock Co. v. Brymer, 5 W. H. & G. 710.

A defendant covenanted to pay to a third person certain rent due and in arrear to him, 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. To an action brought for not paying the rent, it was no valid plea that the plaintiff did not, on the 25th March 1825, give up and discharge the bond and mortgage, nor tender nor offer to do so on that day or before or since; for the performance by the plaintiff of his part of the agreement was not necessarily simultaneous but was naturally to be subsequent. Northrup v. Northrup, 6 Cow. 296. On the same principle was decided Slocum v. Despard, 8 Wend. 615; in each of these cases, the circumstance that the money was to be paid to a third person was considered as indicating the understanding of the parties that the payment was to be first made; evidence of that payment was to be produced by one party to the other before the latter was to perform his covenant. 11 Wend. 48; 9 Grat. 160.

4. On one side the promise may be dependent while on the other it is independent.

If the money is to be paid on a day fixed before the act is to be done, for which it is the consideration, the payment of the money does not depend upon the performance of the actthe promise is independent; but the peformance of the act may depend upon the payment of the money-that promise may be dependent. If the money is made payable after the act is to be performed, the performance of the act does not depend upon the payment of the money, but the payment of the money depends upon the performance of the act. This was the case in Dey v. Dox, 9 Wend. 134; the payment of the money was fixed at a day after the plaintiff was bound to deliver the wheat; therefore the defeudants were not to trust to the credit or personal responsibility of the plaintiff, but had a right to have possession of the wheat before they parted with their money.

5. A condition precedent is sometimes divisible.

Cases may be conceived in which the covenant or agreement

to which a condition is attached may apply to two or more subject-matters, so distinct that the covenant or agreement which is one in form is several in fact, and the condition, in the same way, attached to each, is several in fact, though one in form; and in such case it may be clear that by the intention of the parties, reddendo singula singulis, the performance as to one part may entitle to an action for the non-performance of the corresponding part of the covenant. But the burthen of shewing this will clearly lie on the party who insists upon it, and who seeks to make that divisible which on its face is entire. Wightman, J. in Neale v. Ratcliff, 15 Adol. & El., N. S. 927; 69 Eng. Com. Law Rep. 927.

The court saw no ground for concluding this to have been the case in Neale v. Ratcliff. There, by the agreement, the tenant was bound to maintain and keep the premises in repair, "the same being first put into good tenantable repair" by the landlord; and it appeared that the premises being a public house and out buildings, the landlord had not repaired the former though he had repaired the latter, and the tenant had neglected to keep the latter in repair: the court held that the obligation on the landlord to put in repair was a condition precedent to the tenant's obligation to keep in repair, (Slater v. Hill, Cro. Jac. 645); and that being a condition precedent it was not divisible, and therefore that a part-performance would not enable the landlord to recover as to that part.

6. The rule of Thorpe v. Thorpe, 1 Salk. 170, misapplied in Terry &c. v. Duntze, 2 H. Bl. 389; the latter case overruled in the United States.

The rule of Thorpe v. Thorpe, 1 Salk. 170, it is considered in the U. States, was misapplied by the common pleas in Terry &c. v. Duntze, 2 H. Bl. 389. "The covenant in that case," says Kent, C. J., "was that the plaintiff should finish the building by a given day, and the defendant was to pay the consideration by instalments as the building should proceed and according to a certain and specified state of advancement, and the remaining part of the consideration when the building should be completed; but because two several sums of money were to be paid before the whole was performed, and when only a part of the service was performed, the court held the covenants independent, and as we understand the case and as the reporter understood it, that the plaintiff might maintain his action for the entire consideration without any averment of performance." 10 Johns. 205. Upon the authority of Terry v.

Duntze, decisions were made in New York in Sears v. Fowler, 2 Johns. 272, and Havens v. Bush, Id. 387; and they were followed in Kentucky in Craddock v. Aldridge, 2 Bibb. 15.

But the decision in Terry v. Duntze has been since disapproved.

In Massachusetts, Parker, J. said that "because a man had engaged to pay one certain sum of money before his house was finished, therefore he should be held to pay another sum which he had not engaged to pay, seems to be very questionable as a logical, whatever it may be as a legal conclusion," Johnson v. Reed &c. 9 Mass. 82; an observation which it is a little remarkable was not referred to by Jackson, J. in Gardener v. Corson, 15 Mass. 503.

In New York, Kent, C. J. has adverted to the rule with Lord Holt's explanation, (in Thorp v. Thorp, 12 Mod. 455; 1 Ld. Raym. 662,) that "if it appear by the agreement that the plain intent of either party was to have the thing to be done to him performed before his doing what he undertakes of his side, it must then be averred;" and in view of this explanation, has expressed the opinion that it was misapplied or carried to an unreasonable length in Terry v. Duntze. The decision there, he says, "was contradictory to the plain understanding of the parties, and was not warranted by any of the cases referred to. It was sufficient for the plaintiff to have shewn the advance of the building as stipulated, to have entitled him to the instalment then to be paid, but to have entitled himself to the last instalment, he was bound to aver and shew a completion of the contract. The good sense and justice of the case, as it appears to us, required this construction, and the meaning of the parties could not have been mistaken. The error in that case, and in the two cases in this court which followed it, consisted in holding the covenants to be independent throughout, because a part of the consideration money was to be paid before the entire service was to be performed." Cunningham v. Morrell, 10 Johns. 205. This opinion was approved in Kentucky, McLure v. Rush, 9 Dana 65; and Maryland, Watchman &c. v. Crook &c. 5 Gill & J. 262.

The decision in Terry v. Duntze has also been examined in Connecticut and Virginia and declared to rest on no well established precedent. Bean v. Atwater, 4 Conn. 3; Roach v. Dickinsons, 9 Grat. 165. Disapproved, as it has been, in at least five states, it may now be regarded as of no authority in the United States.

7. What principles have been established in the United States when money is payable by instalments; part of the stipulations may be dependent and part otherwise.

The court of appeals of Kentucky considers that while on the one hand, if it appears that the parties looked to their mutual covenants for indemnity in case of a breach, they will be left to the remedy which they have provided by their contract, yet that, on the other, if it be clear by the terms of the contract that the instalment to be paid is the consideration or price of the prior service to be rendered, or if the prior thing to be done or service to be rendered is the consideration pro tanto of the instalment to be paid, then the doing of the thing or performance of the service is a precedent condition to the payment of the money, and must be averred and proved. McLure v. Rush, 9 Dana 65. The case in Massachusetts of White v. Atkins, 8 Cush. 370, is consistent with the same principle.

Under this rule of construction each part of the contract, where the performance is to be partial and not entire, is made to depend upon its own terms. Part of the stipulations may be dependent and part otherwise; in such case no action can be maintained on those which are dependent without counter performance or something equivalent, while without such performance the action would lie for a breach of other stipulations. Allen v. Sanders, 7 B. Monroe 594. In this case the plaintiff stipulated to erect for the defendant a building of a certain description, to be finished in a specified time and in a workmanlike manner, for which the defendant agreed to give him $50 in hand, $32 50 cts. when the work was completed, and $82 50 cts. at a subsequent period. Applying the rule of construction before mentioned, the court of appeals of Kentucky considered, 1, that the agreement to pay the $50 was an independent stipulation, and that the plaintiff had a right to demand its payment without any averment of performance on his part, because it was to be paid before the plaintiff, by the terms of the agreement, was bound to do any part of the work; 2, that the $32 50 not being due until the work was completed, the plaintiff to shew his right to demand it had to aver and prove performance on his part; that the plaintiff's right to the $82 50 was also dependent on the performance of the prior service by him.

The supreme court of North Carolina has made a like decision, Clayton v. Blake, 4 Iredell 499; the court rests its

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