Knox v. Rinehart

Supreme Court of Pennsylvania

Knox v. Rinehart

9 Serg. & Rawle 45, 1822 Pa. LEXIS 206

DecidedOctober 21, 1822

StatusPublished

This text of 9 Serg. & Rawle 45 (Knox v. Rinehart) is published on Counsel Stack Legal Research, covering Supreme Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Knox v. Rinehart, 9 Serg. & Rawle 45, 1822 Pa. LEXIS 206 (Pa. 1822).

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Opinion

The opinion of the court was delivered by

Gibson, J.

"It is unnecessary to decide, whether a tender of bonds according, to1 the plaintiff’s covenant, was a condition precedent to bringing suit: the affirmative of that question seems to be conceded on the pleadings; and for the purposes of the argument I shall consider the covenants as dependent. The plaintiff averred, that he had always been “ ready to perform all and .singular those things in the same agreement contained, which on his part were to be performed, according to the true intent and meaning thereof;” but without averring actual performance or a tender, or setting out, as he ought to have done, the circumstance on which he relied at the trial as a valid excuse for the want of either, and which was in fact so — the conceded inability of the defendant to convey an unimpeachable title at the time stipulated: for without showing something to excuse actual performance or a tender, an averment of mere readiness and willingness is insufficient on demurrer, or in error, where the judgment is by default. The defendant pleaded covenants performed, and non infregit conventiones, with a special traverse of the plaintiff’s averment. Now all that was put in issue, by this, was the plaintiff’s readiness: not actual performance [47]*47on his part, or a tender of performance. Proof of the facts, required by the defendant, would therefore not have been pertinent. Suppose the matter of excuse had been pleaded properly — it will not be contended, the plaintiff would still have to prove perform-r anee or a tender; and if it be pleaded defectively, that will not change the nature of the proof: the plaintiff will have to prove the matter of excuse, just as if it were well pleaded; and it is precisely for this reason a defective averment of this sort, is held good after verdict. I can therefore see no error in the direction to the jury.

Judgment affirmed.

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The opinion of the court was delivered by

Gibson, J.

"It is unnecessary to decide, whether a tender of bonds according, to1 the plaintiff’s covenant, was a condition precedent to bringing suit: the affirmative of that question seems to be conceded on the pleadings; and for the purposes of the argument I shall consider the covenants as dependent. The plaintiff averred, that he had always been “ ready to perform all and .singular those things in the same agreement contained, which on his part were to be performed, according to the true intent and meaning thereof;” but without averring actual performance or a tender, or setting out, as he ought to have done, the circumstance on which he relied at the trial as a valid excuse for the want of either, and which was in fact so — the conceded inability of the defendant to convey an unimpeachable title at the time stipulated: for without showing something to excuse actual performance or a tender, an averment of mere readiness and willingness is insufficient on demurrer, or in error, where the judgment is by default. The defendant pleaded covenants performed, and non infregit conventiones, with a special traverse of the plaintiff’s averment. Now all that was put in issue, by this, was the plaintiff’s readiness: not actual performance [47]*47on his part, or a tender of performance. Proof of the facts, required by the defendant, would therefore not have been pertinent. Suppose the matter of excuse had been pleaded properly — it will not be contended, the plaintiff would still have to prove perform-r anee or a tender; and if it be pleaded defectively, that will not change the nature of the proof: the plaintiff will have to prove the matter of excuse, just as if it were well pleaded; and it is precisely for this reason a defective averment of this sort, is held good after verdict. I can therefore see no error in the direction to the jury.

Judgment affirmed.

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Bluebook (online)

9 Serg. & Rawle 45, 1822 Pa. LEXIS 206, Counsel Stack Legal Research, https://law.counselstack.com/opinion/knox-v-rinehart-pa-1822.