Betts v. Perine

14 Wend. 219

• Court: New York Supreme Court
• Decided: October 15, 1835
• Status: Published

Opinion

By the Court,

Nelson, J.

The covenant of the plaintiff to provide a suitable dwelling house for the defendant for the time specified in the agreement was not a condition precedent; it formed part of the consideration for the services or work to be done, the residue of which, to wit, the $22 per month, was to be paid quarterly, and of course was an independent agreement. The whole consideration, when taken together, should be construed as a distinct and independent stipulation. The defendant, will have the benefit of any breach of it in his defence, by way of reducing the plaintiff’s damages, if he establishes any. Besides, the second count sets up simply a breach of that part of the covenant, by which the defendant was bound to perform his work faithfully and diligently, and according to the best of his ability; charging him with carelessness and neglect, in the doing of his work. . Now, even if the covenant to provide a dwelling house was dependent, a breach of it would be no answer to the right of action set forth in this count. If the defendant chose to waive the condition precedent and to enter upon his work, he was bound to perform such work diligently and faithfully. The demurrer being to both counts, must necessarily be overruled on this ground.

Judgment for plaintiff, with leave to defendant to plead on payment of costs.