Saunders v. Beal's administrator

7 Ky. 342 | Ky. Ct. App. | 1816

OPINION of the Court, by

Ch. J. Boyie_

Wal-ter Beal sold a lot of ground to Saunders, and executed his obligation to convey the same within twelve months, or as soon thereafter as the consideration money should be paid; and Saunders, on his part, executed to Beal a note under seal for the payment of the price within three years. Walter Beal having died, N. Beal, his administrator, brought suit by petition against Saunders upon the note for the price of the lot. In bar of this action Saunders alleged in substance that he was ready to pay the price, of the lot, and had made a tender of the same to Walter Beal in his lifetime, and that Beal had not conveyed the lot, nor was he able to do so. To this plea there was a demurrer, on which judgment was given for the plaintiff, from which Saunders has appealed to this ciourt.

There can be no doubt that the judgment of the court below is correct. The payment of the price was not by the terms of the contract made to depend upon the conveyance of the lot as a previous condition, and the covenant to pay the price and that to convey the lot being Contained in different instruments, cannot be construed to be dependant covenants. The failure to convey, therefore, most indisputably could not, upon principles of the common law, be pleaded in bar of an action brought upon the contract to pay the price ; nor can this be done under the statute authorising a defendant in an action upon a specialty to go into or impeach the consideration: for where there are mutual independent covenants, it is not the performance of the thing covenanted to be done on the one side, but the covenant itself, which is the consideration of the covenant on the other side; and therefore the failure to perform the one covenant is no failure of the consideration of the other.

Judgment affirmed, with damages and costs.