Northrup v. Northrup

6 Cow. 296

Opinion

Curia, per

Savage, Ch, J.

The plea is bad. The payment of the money to Tomlinson, on the day specified, is clearly a condition precedent. The performance by the plaintiff of his part of the agreement is not necessarily simultaneous ; but was naturally to be subsequent. A general averment of his readiness to perform, is all that can be necessary or proper. To aver a tender was certainly not necessary.

Lord Mansfield, in Jones v. Barkley, (Doug. 690,) makes three classes of covenants ; 1. Such as are mutual and independent, where separate actions lie for breaches on either side ; 2. Covenants which are conditions, and dependent on each other, in which the performance of one depends on the prior performance of the other ; 3. Covenants which are mutual conditions to be performed at the same time, as to which the party who would maintain an action must, in general, offer or tender performance. I consider the plaintiff’s covenant as clearly belonging to the second class. The defendant’s covenant was absolute.

The cases cited by the defendant’s counsel relate to the third class.

The plaintiff must have judgment, with leave to the defendant to amend on payment of costs.

Judgment for the plaintiff.