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decision upon the cases of Kingston v. Preston, Dougl. 689, and Glazebrook v. Woodson, 8 T. R. 366, which will be presently adverted to.

8. How the rule as to condition precedent has been applied in contracts for the sale of land.

The case of a contract that the vendor shall convey before the purchase money is payable has been already adverted to (ante, p. 60). On the other hand where there is an express covenant by the vendee to pay the purchase money on a specified day and no time fixed for the conveyance of the land, the vendor may recover the purchase money without averring that he had conveyed the lands or tendered a conveyance of them. Pordage v. Cole, 1 Saund. 319. If the vendor has not conveyed to the vendee, the latter has a remedy in such case by action of covenant against the vendor upon his covenant to convey. 1 Saund. 319 i.

This rule has been recognized in Virginia in Bailey v. Clay &c. 4 Rand. 350; 11 Leigh 578; 9 Grat. 157, and has recently been affirmed in England. Matlock v. Kingslake, 10 Adol. & El. 50; 37 Eng. Com. Law Rep. 50. Proceeding on the ground that there is no express provision that the conveyance shall be executed before payment, nor any reasonable intendment that it was to be necessarily precedent to or concurrent with it, the English judges apply to such a case, the rule that a time being fixed for payment and none for doing that which was the consideration for the payment, an action lies for the purchase money, without averring performance of the consideration. They consider the acts to be independent within the rule laid down by Sergeant Williams in 1 Wms. Saund. 320 b, note 4.

Such a case is different from Callonel v. Briggs, 1 Salk. 112, and from Goodesson v. Nunn, 4 T. R. 761, Glazebrook v. Woodson, 8 T. R. 366, and other cases where both acts were to be done at the same time or on the same day.

The rule of Kingston v. Preston, Dougl. 689-that one person shall not call upon another to perform his part of a contract until the plaintiff has himself performed all that he has stipulated to do as the consideration of the defendant's promises applies to every case of a sale of property where one engages to convey on a certain day and the other to pay at the same time; and this whether the one be stated in terms to be in consideration of the other or not. Le Blanc, J. in Glazebrook v. Woodson, 8 T. R. 374. This was the case of a covenant for the sale of a schoolhouse, where the plaintiff VOL. II.-5

covenanted to convey on or before a certain day and the defendant covenanted to pay him on or before that day; the payment being the consideration for the conveyance, could not be enforced till that was made or at least offered to be made by the plaintiff.

This principle has been repeatedly acted on in the United States.

A vendor for the consideration after mentioned covenants to execute and deliver to the vendee a good and sufficient deed for certain land, on the first of May 1806; the vendee covenants to pay him $1000 on that day, and $875 on the 1st of May 1812; the fair intent and good sense of such a contract is that no part of the money is to be paid until the deed is ready for delivery. Green v. Reynolds, 2 Johns. 207; Jones v. Gardner, 10 Johns. 276; Seymour v. Bennett, 14 Mass. 266.

The contract of a vendee is to pay for land $ 920 in four years, with interest annually; the vendor covenants to deliver a deed of conveyance to him upon his paying the money "at the time or times above named." As the vendee was in possession, the annual interest may have been by way of rent; and the understanding may well have been that he should pay this interest at least for three of the years, without reference to the expected conveyance; but until the vendor delivered or tendered a deed of conveyance, he could not recover the $920, and perhaps could not recover the interest for the fourth year. Gardiner v. Corson, 15 Mass. 500.

In a case in Virginia, the court was of opinion that upon the true construction of the agreement the plaintiff's testator was bound to make or tender a conveyance for the land sold, whereupon he would be entitled to receive and recover £ 600 as the first payment thereof; and that upon his also ascertaining the quantity of the land by a survey, he would have been farther entitled to such bonds as were stipulated to be given or assigned for the balance; it being found that no such deed was ever made or tendered, the court held that that balance was not due under the agreement, although a survey ascertaining the quantity had been made. Spindle's adm'x v. Miller's ex'ors, 6 Munf. 173.

In the United States, it is generally thought unreasonable to presume that the purchaser of land intended to pay the whole consideration without having the equivalent, in a title. to the land purchased; and the undertakings of the respective parties are considered dependent unless a contrary intention clearly appears. Bank of Columbia v. Hagner, 1 Peters 464. The covenants are held to be dependent where the

whole purchase money is to be paid at once and the deed is to be then given. Parker v. Parmelee, 20 Johns. 135; Kane v. Hood, 13 Pick. 283; or where one party is to deliver or tender bonds with security on a particular day and the other is then to convey, Robertson v. Robertson, 3 Rand. 68; or where one party is to give a deed and the other is to pay part and give security for the remainder of the consideration, Gazley v. Price, 16 Johns. 268; or where one party covenants to pay the last instalment at a particular time, and the other to execute a deed at that time. Johnson v. Wygant, 11 Wend. 48; Kane v. Hood, 13 Pick. 283; Adams v. Williams, 2 W. & S. 227; Peques v. Mosby, 7 Smeades & Marsh. 340; Bean v. Atwater, 4 Conn. 3; Roach v. Dickinsons, 9 Grat. 154. In this last class of cases an obvious reason why the first instalment (or any other before the last) should be paid without having a deed, is that the vendor was to withhold the title as a security for the purchase money, and the vendee was content to rely on the vendor's contract for his future title; but no such reason applies to the final and complete payment of the purchase money. Shaw, C. J. 13 Pick. 283.

9. Clear that as to same subject some stipulations may be dependent and others independent.

The cases clearly establish that in relation to the same subject matter, some stipulations in a contract may be mutual and independent, and others dependent and mutually conditional. Couch v. Ingersoll, 2 Pick. 292; Kane v. Hood, 13 Id. 282; White v. Atkins, 8 Cush. 370, cited ante, p. 64. In the first of these cases, the plaintiff without having tendered performance on his part, recovered on a breach of one covenant because it was independent, and failed on the other, because, upon the construction put upon it by the court, it was independent. In the second case the two first instalments of the purchase money were to be paid before the time fixed for the conveyance of the land, and it was considered very clear that they were independent; but the payment of the last instalment on the one side, and the execution and tender of the deed, upon payment being made, on the other, were deemed dependent and conditional. In the third case, (White v. Atkins) the contract was for a year's service, as it was for 8 months in Reab v. Moor, 19 Johns. 337. There the court held that the plaintiff having left the service within the 8 months could not recover pro rata; but there the stipulation was the payment of an entire sum-there was no promise to

pay monthly; whereas in White v. Atkins the plaintiff was, at his option, entitled to receive his pay monthly; as a condition precedent to the right to demand a month's wages, service was to be performed not for a year but for a month; the defendant was bound to pay for each month's service when performed, upon proper notice of the plaintiff's option; and the defendant had a remedy against the plaintiff should he fail to perform his contract for a year's service, but that remedy was not by refusing payment of monthly wages earned and due by the contract.

10. Where thing which plaintiff has failed to do, is not the most material part of the consideration; the rule of Boone v. Eyre.

The expression in the deed of the covenants by the defendants being in consideration of the covenants, "therein after entered into by the plaintiff's," does not shew that any thing future was in contemplation on which the performance by the defendants of their covenants was to depend. Such covenants will at least not be deemed dependent, when the defendants have in part had the benefit of the consideration. Rose, &c. v. Poulton, &c. 2 Barn. & Adol. 822; 22 Eng. Com. Law Rep. 191.

Unless the non-performance alleged in breach of the contract goes to the whole root and consideration of it, the covenant broken is not to be treated as a condition precedent, but as a distinct covenant, for the breach of which the party injured may be compensated in damages. Duke of St. Albans v. Shore, 1 H. Bl. 270; Davidson v. Gwynne, 12 East 389; Storer v. Gordon, &c. 3 M. & S. 308; Fothergill v. Walton, 8 Taunt. 576; 4 Eng. Com. Law Rep. 213; Fishmongers Co. v. Robertson, 5 Man. & Grang. 197; 44 Eng. Com. Law Rep. 197. Since the case of Boone v. Eyre, 1 H. Bl. 273 note, 2 W. Bl. 1312, the rule is well established that where a particular thing which the plaintiff has failed to do, forms only a part, and not the most material part, of the consideration of the defendant's covenant, and in respect to that part, a breach may be paid for in damages, if the whole of the residue, which forms the substantial part of the consideration, has been had by the defendant, the plaintiff may maintain his action on the defendant's covenant. Campbell v. Jones, 6 T. R. 573; Havelock v. Geddes, &c. 10 East 355; Bennet v. Pesley's ex'ors, 7 Johns. 250; Obermeyer v. Nichols, 6 Binn. 159; Todd v. Summers, 2 Grat. 169. It is considered in such cases, that where a person has received the substantial part of

the consideration for which he entered into the agreement, it would be unjust that because he had not the whole, he should be permitted to enjoy that part without either payment or doing anything for it. Therefore the law obliges him to perform the agreement on his part, leaving him to his remedy to recover any damage he may have sustained in not having received the whole consideration. 1 Wms. Saund. 320 c,

note H; Ellen v. Topp, 6 W. H. & G. 441.

It is remarkable, says Pollock, C. B., that according to this rule, the construction of the instrument may be varied by matter ex post facto; and that which is a condition precedent when the deed is executed, may cease to be so by the subsequent conduct of the covenantee in accepting less, as in the cases referred to, the defendant in the first, Boone v. Eyre, might have objected to the transfer if the plaintiff had no good title to the negroes and refused to pay; in the second, Campbell v. Jones, he might have objected to the payment if the plaintiff had refused to transfer the patent, though he had been willing to teach the art of bleaching. But this is no objection to the soundness of the rule which has been much acted upon. Ellen v. Topp, 6 W. H. & G. 441.

It must appear upon the record that the consideration was executed in part. 1 Wms. Saund. 320 c, note. This may appear by the instrument declared on itself, whereby a valuable right, part of the consideration, is conveyed, as in Campbell v. Jones, or Boone v. Eyre, or by averment in pleading. Where the fact thus appears, it is no longer competent for the defendants to insist upon the non-performance of that which was originally a condition precedent; and this, says Pollock, C. B. is more correctly expressed, than to say it was not a condition precedent at all. Pollock, C. B. in Graves v. Legg, 25 Eng. Law & Eq. 556.

Striking instances of the application of this rule are furnished in the cases of Ritchie v. Atkinson, 10 East 310; Davidson v. Gwynne, 12 Id. 395; Lewis v. Weldon, &c., 3 Rand. 81; Bream v. Marsh, 4 Leigh 21. It is not applied to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract; if in the case of Boone v. Eyre, two or three negroes had been accepted and the equity of redemption not conveyed, it is not apprehended that the plaintiff would have recovered the whole stipulated price, and left the defendant to recover damages for the non-conveyance of it. Pollock, C. B., in Ellen v. Topp, 6 W. H. & G. 442.

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