9 Wend. 129 | N.Y. Sup. Ct. | 1832
The plaintiff musí fail upon principles too well settled to require examination, and the omission to avail himself of those principles, when prosecuted by the present defendants on the contract relative to this same subject matter, has no doubt given rise to the present suit; for, had they been applied, he would have had no cause of complaint. If a greater amount in damages for a breach of Ms agreement has been recovered against Mm than the well settled principles of law would warrant, it is his own fault, and cannot be heard or admitted as a sufficient reason to indulge him in a cross suit to right himself. But before inquiring to see if, upon principles of law and justice, the whole subject of litigation arising upon this agreement could not have been properly adjusted in'the former suit, I will examine this case for the present as if the former suit was out of the question, and which is perhaps placing it upon the ground upon which it ought to have been litigated. It would then stand thus : the plaintiff, after being called upon to carry into execution the agreement on his part, peremptorily refused % and while persisting in such refusal, instituted a suit for damages, for the non-fulfilment of the agreement on the part of the defendants. There is certainly no principle upon which such an action can be sustained, nor have we been referred to any authority in support of it. It cannot be that the plaintiff seeks to recover damages in the strictest sense of that term for the breach of the contract on the part of the defendants, for his own conduct is conclusive to shew that he considers the fulfilment of it an injury to him, and has therefore preferred the hazard of responding in damages himself, rather than carry it into execution. Can he recover the whole consideration for the wheat ? This would be unjust, for he has positively refused to deliver the wheat when demanded, unless, indeed, under the idea that they are independent agreements,the court is bound to afford to each party a specific performance, or its equivalent in damages. Suppose the court should do so, how would the case then stand ? The plaintiff would recover the consideration to be paid for the wheat, and the defendants the same sum for the non-delivery of it,besides such damages as a jury would allow for the default in not
It seems to be considered by the counsel for the plaintiff that if one of the promises in the agreement is independent, the other must be so also; and as it has been decided by this court, 3 Wendell, 356, that the plaintiff’s promise to deliver the wheat was independent, therefore the defendants’ promise to pay the money must be also independent. This is an entire mistake. In all cases (except concurrent promises, where the performance of both takes place at the same time) where the performance of one promise is a condition precedent, and must, be performed or excused before the right of action exists for the breach of the other promise, the one is independent and the other dependant. The definition of a dependant covenant or promise shews this: If A. covenants to do or to abstain from doing a certain act, in consideration of the prior performance óf some covenant on the part of B., A.’s covenant is termed a dependant covenant, because B.’s right of suing A. for a breach of this covenant depends upon the prior performance, or what is equivalent, of the covenant to be performed by B., which, from its nature, is termed a condition precedent. Mow it is obvious that the covenant of B. is independent, because it must be performed without reference to the covenant of A., and for a breach of it, A. may recover damages without shewing a perform-. anee himself. Where the promises are concurrent there, either party seeking to enforce the agreement against the other must aver and prove performance on his part, or what is in law equivalent, before his right of action commences. There can be no doubt that the promise of the plaintiff in this suit was independent, upon the reasons and | authorities given by the court, 3 Wendell, 356; but is not that of the defendant dependant ? One of the rules of construction applicable to questions of this kind from the same high authority there referred to is, that “ when a day is appointed for the payment of money, ¿fee. and the day is to
The rule to which I have before referred, and which ought to have been applied to the defence on the former suit by the then defendant, and would have adjusted all the rights of the parties without further litigation upon principles of law and justice, and which has been very fully considered by this court,
The view I have thus taken of the case, renders it unnecessary to examine many of the questions raised; those which have been examined were raised upon the trial.
New trial granted, costs to abide the event.