Nugen v. Rogers

1 Tapp. Rep. 55

• Court: Columbiana County Court of Common Pleas
• Decided: June 15, 1816
• Status: Published

Opinion

President.

This is a covenant, on the part of the plaintiff, to cut sufficient wood to keep the defendant’s furnace boiling eight montlis; and, on the part of the defendant, to pay in salt, rate 0f wo d0i]ars p61> day for the wood. The plaintiff brings his action, claiming the whole of the salt, an¿ ayg^^g that he has cut the whole quantity of wood. That the cutting the wood is a condition precedent, is very clear; but although he has not cut the whole quantity, may he not recover, in this action, for so much as he has .cut ? I am of opinion that he cannot. The plaintiff might have cut wood enough to come to a wagon load of salt,- have given the defendan t notice, and after a reasonable time for the delivery had elapsed, have brought suit for the salt so earned, and so on, Mies quoties, for the whole. But here he goes for the whole consideration. It was necessary for him to aver a complete performance on his part, and he must prove it, or he is not entitled to a verdict. — Verdict for the defendant.