Tompkins v. Elliot

By the Court, Savage, Ch. J.

The question is whether the performance of the plaintiff’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independent. It has been well remarked by Sergeant Williams, in his note to Pordage v. Cole, 1 Saund. 320, n, 4, that almost all the old cases, and many of the modern ones on this subject, are decided upon distinctions so nice and technical, that it is very difficult, if not impracticable, to lay down any general principle by which to determine what covenants are independent and what dependant. The only cardinal rule is, to construe cove-!' nants according to the meaning of the parties and the good sense of the case. To ascertain that intention, some general roles are deduced from adjudged cases. I. If a day be appointed for the performance of any act, and such day is to happen or may happen before the performance of the act which is the consideration for the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring performance of the consideration ; for it appears that the parly relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is when no time is fixed for the performance of the consideration. 2. But when the day appointed for the payment of money or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of (he condition. 3. Where a covenant goes only to part, of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be brought for a breach of the *498 covenant by the defendant without averring performance; and when a person has received part of the consideration for which he entered into the agreement, it would be unjust that, because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing any thing for it; and therefore the Jaw obliges him to perform the agreement on his part, and leaves him to his remedy to recover damages for not receiving the whole consideration. 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions and dependant. 5. Where two acts are to be done at the same time, neither party can maintain an action without shewing performance or an offer to perform his part.

The doctrine of mutual and independent covenants has been applied in some cases in England and in this court to cases where work was to be done and money paid by instalments as the work progressed; and it was held that because the defendant had agreed to pay part of the money before the whole work was done, that the covenants throughout were mutual and independent, and the plaintiff who was to do the work might sue for the money without shewing performance of the work. Such was the decision in Terry v. Duntze, 2 H. Bl. 389, and in Sears v. Fowler, 2 Johns. R. 272, and Havens v. Bush, 2 Johns. R. 387. But this court seeing the injustice of such doctrine, was led to review those cases in Cunningham v. Morrell, 10 Johns. R. 203, when they came to the conclusion that the cases just mentioned were erroneously decided ; and held, that in a case where the contract was to pay as the work progressed, the party prosecuting for the pay must shew that the work was done, or if he sought a part payment, he must shew a part performance.

Those cases seem to me not like this case. There the parties had said that the money should be paid in proportion as the work progressed; and when the court said the money should be paid before the work was done, or any part of it, they were making a new contract for the parties, which was not so reasonable as that which they had made for themselves. In this case the defendant covenants to make payment by a certain day; the consideration for this covenant consists *499 of 1. a conveyance by the plaintiff to the defendant of a right to the first crop on 90 acres of land which had been cleared by the plaintiff; and 2. a covenant to finish the clearing and fencing the ground, and taking off certain bushes as fast as the defendant should want to sow; and a further covenant to pay the damages if the plaintiff failed in performing his agreement. It seems, therefore, that the defendant did not intend to rely upon the previous performance by the plaintiff, but upon his covenant. A day certain is also fixed for the payment, but non constat, that the defendant wished to sow the ground before that time. And again, the principal part of the consideration he had received—the right to the first crop—and it would be unjust that the plaintiff, by failing to clear according to contract one acre of the ninety, should lose the whole $300. For these reasons, I am of opinion, that the intention of the parties was, and such is the true construction of the contract, that .the covenants are mutual and independent. Of course the plea is bad, and the plaintiff is entitled to judgment on the demurrer, with leave to defendant to plead anew on payment of costs. See 7 Johns. R, 250. 1 H. Bl. 272.