1 Denio 59 | Court for the Trial of Impeachments and Correction of Errors | 1845
When there are mutual covenants between the parties, the thing to be done by one being the consideration for the thing to be done by the other, and both parties are to perform at the same time, the covenants operate as mutual conditions, and neither party can maintain an action until he has performed, or offered to perform his part of the agreement. The covenants are dependent, and neither is obliged to part with his money or property, and trust to a remedy by action against the other. But where it appears from the terms of the agreement, or the nature of the case, that the things to be done were not intended to be concurrent acts, but the performance of one party was to precede that of the other, there he who was to do the first act may be sued, although nothing has been done or offered by the other party. He has not made performance by the other party a condition precedent to his liability ; but has trusted to a remedy by action on the agreement. (1 Saund. 320, n. 4; Northrup v. Northrup, 6 Cowen, 296; Slocum v. Despard, 8 Wend. 615 ; West v. Emmons, 5 John. 179, as explained in Parker v. Parmlee, 20 id. 136.) Now here, as I read the contract, nothing was to be done by the plaintiff until after the defendant should have completely performed his part of the agreement. The plaintiff was not to convey at the time of receiving the last payment; (Johnson v. Wygant, 11 Wend. 48;) but within a reasonable time after that payment should be made. (Fuller v. Hubbard, 6 Cowen, 13 ; Fuller v. Williams, 7 id. 53.) That might be a week or a month. I think the defendant has plainly agreed that he would pay the money, and trust to a remedy on the plaintiff’s covenant in case the deed should not be duly delivered; and he must abide by his contract. The declaration was sufficient.
Motion denied.
