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It was a matter of great doubt in the minds of some of the judges, whether the rule could be applied to the case of Ellen v. Topp. The action was by the master against the father of an apprentice, on an indenture, by which with defendant's consent his son had put himself apprentice to the plaintiff, described in the indenture as "auctioneer, appraiser and corn factor, to learn his art, and with him, after the manner of an apprentice to serve ;" and defendant bound himself for the performance of this engagement, in effect covenanting that his son should become the plaintiff's apprentice to learn his art, that is, the art of an auctioneer, appraiser and corn factor, and to serve with him after the manner of an apprentice. Now, service with a man after the manner of an apprentice imports, according to the meaning of these words as ordinarily understood, that the party served should be carrying on the trade which the apprentice is to learn; otherwise the one is teaching and the other learning the trade, not as master and apprentice, but as instructor and pupil. When therefore the one party ceases to carry on the trade, he, by his act makes it impossible for the other to serve him after the manner of an apprentice, and he cannot be heard to complain that the other party has not done that which he has wilfully made it impossible that he should do. The plaintiff, however, took the ground that the carrying on all the three trades was not a condition precedent to his right to recover, but that his omission or refusal to carry on any one must be the subject of a cross action. But the court of exchequer held otherwise. It was not able to distinguish between the three trades of auctioneer, appraiser and corn factor, so as to say that one was more the substantial part of the contract than another; and as the plaintiff, by his own fault, had disabled himself from acting as a master in all the three trades, it was considered he had no right to complain of the defendant's son refusing to continue to serve in any, and judgment was given for the defendant.

11. Effect of one party preventing the other from performing his part of the contract.

"Whether the covenants or promises are independent or not, where the agreement is wholly executory and the one covenant or promise or performance is the consideration for the covenant or promise or performance of the other, it may," says Nelson, J., "be stated with confidence that there is no principle or authority which will maintain a suit at law by a party who has positively refused to fulfil his part of the

agreement, against the other to recover damages for a breach of it.

Dey v. Dox, 9 Wend. 132.

In cases of material dependent covenants or contracts where something is to be done by each party at the same time, neither party is bound to tender an unconditional performance of the contract or covenant on his part; but if either party offers to perform the covenant or contract on his part, provided the other party will perform the contract on his part, and he declines, that is sufficient to support an action against him. 5 Cush. 362. Although no such offer was made by the plaintiffs, yet if their offer of performance was prevented by the act of the defendant, the proof of such prevention is equivalent to a tender or an offer of performance on the part of the plaintiffs. Bac. Abr. Condition 2; Borden v. Borden, 5 Mass. 67; Tasher &c. v. Bartlett &c. 5 Cush. 363.

It is frequently said in general terms that where a man by doing a previous act would acquire a right 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. Jones v. Barkley, Dougl. 685; Hotham v. East India Co. 1 T. R. 638; Marshall v. King, 1 Bibb 391. This is undoubtedly true in many, perhaps most cases. "It is," says Robertson, C. J., "generally true in cases in which the tender will entitle the party to whom it was made to the thing tendered, and to the maintenance of an action for it. Thus where a party entitled by contract to a conventional sum of money for a horse, upon the delivery thereof, shall have tendered the horse according to his undertaking, he may maintain an action for the price, and the other party will be entitled to the horse in consequence of the tender. In such a case, when the doing of a single act or the delivery of a thing, is a precedent condition, not only is a proper offer to do the act, or tender of the thing, proof that had it not been rejected the condition would have been performed, but the rights of the parties then become independent and available to each of them by action or otherwise; and therefore, in such a case, a tender of performance will, in all respects, be deemed equivalent to actual performance. Chamberlins v. Macallister &c. 6 Dana 357.

There is, however, a material difference between a case like Jones v. Barkley, in which by doing an act in the power of the party to have done, he would have acquired a full and instant right to the duty demanded, and a case in which by doing the act tendered, to the full extent to which the party tendering was able to perform it, he would still have only taken certain steps of remote and uncertain effect towards the attainment

and completion of what was necessary to be attained and completed in order to vest in him a right to what he demanded. Under the terms of a charter-party, the freight, pilotage and port-charges covenanted to be paid by the defendant, were made to depend on the arrival and discharge of the ship at her destined port; the effect of this as a condition precedent to the plaintiff's right to demand the freight, &c., was sought to be avoided by the tender and offer of his ship for the voyage, his request for instructions and offer to obey them, and by the defendant's refusing to give such instructions, and discharging the defendant from further prosecuting the voyage. Here, said the court, if the plaintiff had done all that he offered to do, and which the defendant discharged him from performing, still it would have amounted, at most, only to an endeavour on his part to prosecute and complete the voyage, and to procure, as far as in him lay, the arrival and discharge of the ship at her destined port; but the actual event of such an arrival and discharge, it was not within the reach of any efforts on his part to insure and to accomplish.

The court held that, as

the ship never arrived at her destined port, the freight never became demandable by law. Smith v. Wilson, 8 East 444. This case governed Hamilton v. Warfield, 2 Gill & J. 491.

The rule of Jones v. Barkley is not applicable to a case in which the party rejecting a tender or preventing performance, thereby loses all legal right to enforce the contract in his own favour or maintain any action for the non-performance of the other party. Thus, if upon a covenant by one party to build a house for another for $10,000, to be paid on the completion of the house, the covenantor offered to commence the work at a proper time, but was prevented from beginning by the other party in consequence of a change in his determination, or of his inability to procure the proper materials, it is not the law that the one party can recover the $10,000, in an action of covenant, when the other had not been benefitted and will not be entitled to any future performance, or action for nonperformance, of the work. Chamberlins v. McAllister &c.

6 Dana 358.

In cases, however, in which the offer and refusal may not be deemed equivalent to actual performance according to contract, so far as the measure of recovery may be concerned, yet as it shews a legal excuse for non-performance of a precedent condition, the court of appeals of Kentucky holds that it may dispense with the averment of performance, which would otherwise be necessary in a declaration, and thus enable an action to be maintained on the covenant, for the recovery of such damages, and such only, as have actually accrued.

Chamberlins v. McAllister &c. 6 Dana 357, 8; Jewell v. Blandford, 7 Id. 472; Rankin v. Darnell, 11 B. Monroe 31. A like rule is acted on by the courts of South Carolina. They consider that the defendant, who first failed to perform his part, cannot when he has accepted and used a considerable portion of the plaintiff's work, defeat a recovery in toto; but that the recovery will be pro tanto. Summer v. Dewalt, 1 Spears 135.





1. When material that instrument should be executed by covenantee as well as covenantor.

"With respect to leases by indenture, the older authorities shew that the covenants, which depend on the interest of the lease, and are made, because the covenantor has that interest -such as those to repair and pay rent during the term, are not obligatory, if the lessor does not execute,-not because the lessor is not a party, but because that interest has not been created to which such covenants are annexed, and during which only they operate. As such covenants undoubtedly do not, if the term ends by surrender, and are suspended by eviction by the lessor, so they do not begin to operate unless the term commences: the foundation of the covenant failing, the covenant fails also. Unless there be term, a covenant to repair during it is void. But with respect to collateral covenants, not depending on the interest in the land, it is otherwise, and they are obligatory." Parke, B. in Pitman v. Woodbury, 3 W. H. & G. 11.

"This rule of law is to be found in the older authorities, which are collected in Com. Dig. "Covenant," (F). The case of Soprani v. Skurro, Yelv. 18, is one. In that case the court say, the covenants to repair depend upon the lease: if no lease, there is no covenant; and if the lease was made, and then surrendered, all the covenants would be void. In the case of Waller v. The Dean and Chapter of Norwich,

(Owen 136, reported also in 2 Brownlow 158), there is much discussion on the question, whether a covenant to save the lessee harmless was avoided if the term was void, it being conceded that the covenants to repair or pay rent, immediately depended on the lease, and were void if it was void, though collateral covenants were not affected. And in Knipe v. Palmer, 2 Wils. 132, it was held that the lease was void, at law, because made by the committee of a lunatic; and that all the covenants which run with the land, the lease being void, fell to the ground. In the case of Cardwell v. Lucas, 1 M. & W. 111, the court of exchequer found it unnecessary to decide this point." 3 W. H. & G. 11.

But that court has questioned the authority of Cooch &c. v. Goodman, 2 Adol. & El., N. S. 580; 42 Eng. Com. Law Rep. 817; where the court of queen's bench considered the doctrine as not applying when the lessee has entered and enjoyed during the whole term; the court deeming him in that case to have had all the consideration for his covenant for which he had bargained. "There is," said Parke, B., "a difficulty in saying that he is bound by having enjoyed for a period of years equal to those which the term would have comprised if it had been granted, if he was not bound during their continuance; and it is hard to say at what precise time the obligation commenced." Pitman v. Woodbury, 3 W. H. & G. 13. He remarks, however, that although Lord Denman in giving judgment, expresses that as the opinion of the court, the case was not decided on that ground but on another; in a subsequent case he has said that the authority of the decision may be questionable. 7 W. H. & G. 21.

Assuming, however, that the opinion in that case was correct, the case of Pitman v. Woodbury, was distinguished from it; the defendant in this case having never entered or enjoyed under the lease, but under a distinct demise from year to year; and therefore having never had that consideration which he was supposed to have stipulated for. He enjoyed under a different right altogether, from which a different species of contract might be probably inferred, to be enforced in another form of action, but which was not an enjoyment of that interest during the existence of which the defendant had covenanted to repair. It was therefore held that the defendant never was bound, because the term to which the covenants declared upon were annexed never was executed.

2. Distinction between real and personal covenants.

It is designed now to treat of real covenants, depending on the interest in the land.

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