| Mo. | Mar 15, 1848
delivered the opinion of the Court.
Two questions are presented by the record : First, whether a failure to set out in the declaration, a dependent covenant, is such a variance, as would upon the trial, subject the plaintiff to a non suit? Second, whether the omission can be taken advantage of under the plea of non est factum, ?
It is a principle in pleading, that the plaintiff must in his declaration, truly set out his case according to its legal effect, stating so much of the items of the contract, beneficial to him, as constitutes the point ior the failure of which he sues. It is not necessary to set out in the declaration, other parts of the contract, not qualifying or varying in any respect, the
To ascertain whether a covenant contains a condition precedent, tobe performed by the party bringing the action, before he is entitled to recover, requires an examination of the whole instrument, and even then, it is frequently difficult to arrive at any satisfactory conclusion of what the parties really intended. In the case under consideration, no doubt or uncertainty exists, as'theparties have expressly stipulated “that the covenants contained in this lease, are dependent on each other.” Then, according to the principles above referred to, the plaintiff should have set them out in his declaration and have averred a performance, or readiness to perform on his part, prior to the bringing of the action.
The usual method of taking advantage of an omission to state all the necessary parts of a contract, is by craving oyer of the instrument sued upon and demurring. This would make the whole agreement a part of the pleadings, and at once present to the court the objection to the declaration. This course v/ould perhaps defeat the defence, under the plea of non est factum, as it would change the issue from the writing declared upon in the declaration, to that set out on oyer. Having failed to adopt the course above suggested, can the defendant avail himself of the omission under the plea of non est factum? It is laid down by Mr. Chitty in his treatise on pleadings, vol. 1, p. 467, that where the defendant wishes to avail himself of a variance between the deed as set out in the declaration, and the deed itself, -he had better plead non est factum without craving oyer, and then the question would be, whether the deed, as described in the declaration, was executed by the defendant. And in the case of Howell vs. Richards, 11 East., 633, which was an action for breach of covenant for quiet enjoyment, it was held that “if the covenant for quiet enjoyment were to be restrained to the' acts of the releasors by any qualifying context, then the declaration in covenant, stating it by itself in its own absolute terms, without such qualifying context belonging to it, seems to be an untrue statement of the deed in substance and effect, which the defendant may take advantage of upon the general issue of non est factum, as a variance and ground of non suit or of a verdict for him.” See also, 1 Chitty’s Plead., 519.
Upon the authority of these cases and the cases therein referred to, we are of opinion that the defendant was entitled to have the whole agree
The judgment of the Circuit Courtis reversed and the cause remanded,,