Johnson v. Applecate
1 N.J.L. 233
N.J.
1794
Check Treatment
Kinsey C. J.

It has been objected that the suit was improperly brought in the name of Johnson — that the real parties of the first part in this deed are Barbarie and Skinner, and that Johnson is but a mere attorney acting in their name:— that though he signs his own name to the seal, yet we must recur to the body of the instrument to ascertain the character in which he acts, and he there appears to be acting in a representative capacity. Although Applegate “ agrees to pay the money to Johnson” yet it is “ for the use of the parties of the first part,”

*234There is however no weight in this objection. Here is am express covenant to pay the money to Johnson, for the use of Barbarie and Skinner, and it is in the very teeth of the covenant to say that Johnson cannot sue for it. Teh. 177.

Zd It is objected that the plaintiff ought to have made, or offered a title before he could sue for the money; and certainly a conveyance or tender of one, should have preceded this suit: it is unreasonable to compel the defendant to pay the money before a title is offered. The case of Goodison v. Nunn 4 T. R. 764. is in point, (a)

Judgment for defendant.

Note__With regard to the question whether it be necessary to aver performance of one part of a mutual covenant, it depends altogether upon another which must be previously settled, whether the promises or agreements are dependent or independent covenants. According to the sound and legal observation of Ashhurst J. in Hotham v. East India Co. 1 T. R. 645. there are no precise technical words required in a deed to make a stipulation a condition precedent or subsequent;” it “ depends upon the intention of the parties, the good sense of the case; and technical words should give way to such intention” as is remarked by Serf. Williams 1 Saund. 320 a nota, (a) So numerous are the cases in which this question has been involved, and so delicate are the shades o‘f difference which distinguish them, that the determination in each seems chiefly to rest upon its peculiar circumstances. The learned Serjeant Williams, in the note to which reference has already been made, ventures to deduce certain general rules which it may be important to give in his own words. 1st If a day be appointed for payment of money, or part of it, or for doing any other act; and the day is to happen, or may happen, before the thing which is the consideration of the money, cr the other act is to be performed; an action may be brought for the money, or for not doing such other act before performance; — for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent: and so it is where no time is fixed for performance of that which is the consideration of the money or other act. Dyer 76. a. in margine. Thorpe v. Thorpe, 1 Salk. 171. 1 Ld. Ray. 665. 1 Lutw. 250. 12 Mod. 461. Peters v. Opic. 1 Vent. 177. Callonell v. Briggs. 1 Salk. 113. Teny v. Duntze. 2 H. Bl. 389. Campbell v. Jones. 6 T. R. 572. Pordage v. Cole 1 Saund. 319. Ughtred’s case 48 Ed. 3. incorrectly reported 7 Rep. 10 b.(b) 2d When, however, a day is appointed for the payment of money &c. and the day is to happen, after the thing which is the consideration of the money &c. is to be per-

а) Willes 157. 7 T. R. 130. 8 T. R. 366. 5 Bos and Pull. 233. 2. John. Rep. 145.

1 East 639, 631. 2 Johns. 373, 387, *235formed, no action can be maintained for the money See. before performance. Thorpe v. Thorpe 2d resolution. 1 Salk 171. 12 Mud. 462. 1 Ed. Ray. 665. 1 Lutw. 251. Dyer 76. a pl. 30. 3d Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damage?, it is at’ independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. Boon v. Eyre. 1 H. Bl. 273. note (a) Ibid 279, 6 T. R. 570 Campbell v. Jones. (a) 4th But where- the mutual covenants go to the whole consideration on both sides, they are mutual conditions and performance must be averred, Large v. Cheshire 1 Vent. 147. Duke of St. Albans v. Shore. 1 H. Bl. 270. 5th Where two acts are to be clone at the same time, as where A, covenants to convey an estate to B. on such a -day, and in consideration thereof B. covenants to pay A. a sum of ¡money on the same day; neither can maintain an action without showing performance of, or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale. Callonell v. Briggs 1 Salk 112, 113. Thorpe v. Thorpe Ibid. 170. Lancashire v. Killingworth 2 Salk. 625. Kingston v. Preston Dougl. 639. Jones v. Barkley. Ibid. 684. Goodison v. Nunn 4 T. R. 761. Porter v. Sheppard 6 T. R. 665. Morton v. Lamb. 7 T. R. 125. In addition to these cases cited to support the 5th proposition of Williams may be cited Heard v. Wadham 1 East 619. Green v. Reynolds 2 Johns. Rep. 207. Cunningham and another v. Morrell 10 Johns. 203.

Hall v. Cazenove. 4 East 484.