15 Mass. 499 | Mass. | 1819
The evident intent and meaning of the parties, as
The defendant covenanted that he would purchase the land in question, and pay for it the sum of 920 dollars, in four years, with interest annually. The plaintiff’s intestate covenanted that he would deliver a deed of conveyance to the defendant, upon his paying the money “ at the time or times above named.” Omitting, for the present, the consideration of the annual interest, it is manifest that the acts to be performed by both the parties were intended to be simultaneous. The defendant was to pay his money for the land; he did not intend to pay at the end of the four years, if the plaintiff should then refuse to deliver the deed. On the other hand, the plaintiff’s intestate was to deliver the deed upon receiving the money ; he did not intend to convey the land unless the defendant should pay the money. These were mutual conditions ; and neither party could complain of the default of the other until he had offered to perform his part of the agreement.
The only doubt, in the present case, arises from the covenant, on the part of the defendant, to pay the interest annually. If he had covenanted to pay any substantial part of the consideration money before the delivery of the deed, that would show that he relied on the covenants of the intestate, and that he did not intend to make the performance by the intestate the condition of performance on his part. If, for example, he had covenanted to pay the price in four annual instalments, whether with or without interest, the case would be like that of Terry & Al. vs. Duntze;
Now, in the present case, it is material to observe that the defendant was already in possession of the land to ne conveyed, at the lime of executing the instrument. It appears that he was to con
But, upon the construction which we give to the contract, the plaintiff was entitled to sue for and recover the interest, at the end of each of the first three years; and nothing has since occurred to bar that right. He may, therefore, recover it in this action.
As to the interest for the fourth year, that was to be paid, together with the principal, on receiving the deed In one view, this may be considered to be equitably due, as *much as the interest for the three preceding years. But the parties have thought fit to make the last payment of interest, as well as the payment of the principal sum, depend on the condition of his receiving a deed at that time. If they had agreed explicitly that he should pay 920 dollars for the land in four years, and that he should pay rent for the mean time, at the rate of 55 dollars 20 cents per annum ; but that the whole should be postponed to the end of four years, and then paid only on condition of his receiving a conveyance, there would be no doubt as to the lights of the parties. Now, as we understand the contract, they have made an agreement of this kind, as to the interest for the last yeai.
It is not, however, necessary to settle this point now ; as our opinion is, that the declaration is good, and that the plaintiff is entitled to recover some damages; and the damages may be assessed by a jury, if the parties require it. We have suggested our present opinion upon that subject, according to the facts appearing on the record ; in order that, if there are no further facts relating to this point, the parties may liquidate the damages, if they think fit, without further trouble or expense,
2 H. Black. 389.
Covenants, as they are affected by each other in the same deed, may be divided into three .classes. First, there are covenants which are conditions, and dependent, in which the performance of one depends on the prior performance of another; and therefore, till the prior condition be performed, the other party is not liable to an action on his covenant. Secondly, there are others which are mutual conditions, to be performed at the same time ; they are also termed concurrent covenants ; and in these, if one party is ready, and offers to perform his part, and the other neglects or refuses fcs
Among the cases of the first class are The Duke of St. Albans vs. Shore, 1 H. Bl. 270. — Large vs. Cheshire, 1 Vent. 147. — S. C. 2 Keb, 801. — Morris vs. Knight, Sugd. Vend. and Pur. 219, 6th ed.— Thomas vs. Cadwalder, Willes, 496.—Reab vs. Moore, 19 Johns. 337.
Among the cases of the second class, are Smith vs. Wilson, 8 East, 437. — 6 M. & S. 78.— Cook vs. Jennings, 7 T. R. 381. — Thomson vs. Brown, 7 Taunt. 656. — 1 J. B. Moore, 358.— Gibbon vs. Mender, 2 B. & A. 17. — Byrne vs. Patterson, Abbot on Shipping, 335, 5th ed. — Lock vs. Wright, 1 Str. 599.—8 Mod. 40.
Among the cases of the third class, are Boone vs. Eyre, 1 H. Bl. 273, note. — 2 W. Bl. 1312. — Fothergill vs. Walton, 8 Taunt. 576. —2 J. B. Moore, 630. — Campbell vs. Jones, 6 Tenn. 570.— Carpenter vs. Creswell, 4 Bingh. 409. — 1 M. & P. 66.
Among the cases of the fourth class, are Pordage vs. Cole, 1 Sound. 319. — 1 Sid. 423. — 1 Lev. 274. — T. R. 183. — 2 Keb. 533, 542. — Walker vs. Harris, 1 Anst. 245 — Terre vs. Duntre, 2 H. Bl. 389. — Back vs. Owen, 5 T. R. 409. — Russen vs. Coleby, 7 Mod. 236.