| Ark. | Jan 15, 1841
delivered the opinion of the court:
As far as the parlies pleaded over, the demurrers are virtually withdrawn; but to the plea, to which the demurrer was sustained, it is different; for, a demurrer, in whatever stage of the proceedings it is taken, reaches back, in its effect, through the whole record, and, in general, attaches ultimately upon the first substantial defect in the pleadings, on which ever side it may occur. Thus, if the declaration is ill in substance, and the plea frivolous, as is contended by the plaintiff, and so decided by the court below, and demurrer joined on the plea, judgment must be given for the defendant. For, though the issue is upon the plea only, and though that is worthless, yet a bad plea is sufficient for a bad declaration. Com. Dig. Pl. M. 1, 2; 2 Salk. 519; 1 Saund. 285; n. (5); 1 Strange, 303; 2 Wils. 150; 10 Wheaton, 287. Covenants are' to be so expounded as to carry into effect the intention of the parties, and this intention is to be collected from the whole contents of the instrument, so as to make one entire and consistent construction of the whole; and be such as to support, rather than defeat the transaction. Now, what is the reasonable and common-sense construction of the deed?. That Childress and Foster had obtained a judgment against Foster, upon an unliquidated claim, and to save further litigation, it was agreed that Foster himself, or any other person whom he might select for that purpose, should examine the books for the years 1836 and ’7. And that the errors, if any, should be rectified. That, in the meantime, execution should not issue upon the judgment previous to the first of May, 1839, unless there was imminent danger of the debt being lost, by the insolvency of Foster, or otherwise. The deed itself, sealed by the party, carries with it evidence of consideration, and has for its object, not the performance of an act, malum in se, but the prevention of litigation and the advancement of justice. The question now is, are the breaches well assigned? It is not usual in covenants to set forth the penal part of a deed, though we are not prepared to say it vitiates the pleadings so far as to render the defect fatal. In setting out a contract, it is sufficient to state it according to its legal operations and effect. The allegation of breach must be governed by the nature of the stipulation. It should be assigned in the words of the covenant, either negatively, or affirmatively, or in words co-extensive with the import and effect of it, if, in so doing, a distinct breach is thereby shown. It is an established rule, that where a party, by his own contract, creates a duty or charge upon himself, he is bound to make it good, if he can. And when any thing is to be done by the plaintiff, before his right of action accrues upon the covenant, performance of that thing must be averred in the declaration. It has been settled by a long series of modern decisions, that no technical words are necessary to make a condition precedent or subsequent. And that the question, whether they are the one, or the other, is to be determined by the intention and meaning of the parties, as it appears on the instrument, and by the application of common-sense to each particular case; to which intention, when once discovered, all technical forms must give way. Where the right of action depends upon the performance of a condition precedent, by the plaintiff, if the declaration omits to allege performance, the omission is incurable, by verdict, 6 T. R. 710; Com. Dig. Pleader C. 69; 1 Saund. 320; 2 B. and P. 447; 7 T. R. 125. For,in every case of the kind, performance of the condition, or what is equivalent thereto, is of the gist of the action, and is, moreover, a distinct fact, which cannot be inferred or presumed from the other facts necessary to be alleged. If performance, or what is equivalent thereto, be not alleged, the defendant may plead non-performance of the conditions precedent, in bar of the action, or take advantage of it on demurrer, or in arrest of judgment, if the omission appears on the record. It is true, that the breaches are set out, in the declaration, in the language of the covenant. But was there any act to be done by Foster before he was entitled to his action? Childress covenants that Foster, or any other person whom he may choose for that purpose, may examine his books for the years 1836 and ’7, and that the errors there, if any, shall be rectified. As no time is stipulated, Foster would have until the first day of January, 1839; for it is evident, the issuing of the execution was to be deferred only to give time for the examination. There is no averment that Foster ever requested Childress to permit him to examine his books, or that he gave him notice that either he, Foster, or the person he had chosen, was ready and willing, and offered to make the examination, nor does he show any equivalent thereto. The breach is clearly insufficient, and, as the judgment must, on the whole, go against him who commits the first substantial fault in pleading, we are of opinion, that the judgment, upon the demurrer to the second plea, ought to have been, not for the plantiff, but for the defendant. The judgment is reversed, with costs, and this case remanded, with instructions to permit the parties to amend their pleadings, if leave is asked.