16 Barb. 89 | N.Y. Sup. Ct. | 1852
The technical rules for the con.struction of executory agreements, which once prevailed, have
Such an agreement obviously belongs to the fifth class of covenants contained in the celebrated note of Sergeant Williams to Pordage v. Cole, (1 Saund. 320.) “ Where two acts are to be done 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.” The same rule is stated more briefly by Savage, Ch. J. in Tompkins v. Elliot, (5 Wend. 496.) “ Where two acts are to be done at the same time,” he says, “neither party can maintain an action without showing performance, or an offer to perform, on his part.”
In West v. Emmons, (5 John. 179,) an agreement had been executed on the 7th of April, 1807, wherein the defendant had covenanted to execute to the plaintiff, on or before a specified day, a deed of a certain lot of land, and the plaintiff had covenanted, that upon the execution of the deed, he would secure the purchase money by his bond, and a mortgage upon the prem- ■ ises. The purchaser sued the vendor for not conveying according to his agreement, and averred his readiness to execute the bond and mortgage, and that although he had, at the time specified in • the 'agreement, requested the defendant to execute • the
Assuming therefore, that all the averments in the complaint are true, enough is not shown to put Southwick in default. He may, for any thing that appears to the contrary, have been as ready and as willing to perform the agreement on his part, as was the plaintiff.
Nor has the plaintiff sufficiently alleged a breach of the agreement by Southwick. The only averment in this respect is, that Southwick “ failed to fulfill his obligations by virtue of said instrument.” Whether he “ failed to fulfill his obligations,” or not, is a conclusion of law, to be derived from the facts, when they are made to appear. It is not an issuable fact. The plaintiff
Nor is the recovery of a judgment against Southwick “on account of his failing to fulfill his obligations,” a fact, of which the plaintiff can avail himself to establish the defendants’ liability. Their testator undertook that Southwick should fulfill his contract with the plaintiff. If he has not done so, the facts which show his failure must be averred and proved, before the estate of the guarantor can be charged for his default. How the judgment came to be recovered against Southwick, is a matter which does not concern the defendants. It may have been on the ground that the contract had been waived or rescinded, and thus Southwick had made himself liable to refund the money he had received. It may have been recovered through neglect, or by collusion. It is enough to say, that the defendants have not undertaken to be bound by any such recovery. They can
Parker, Wright and Harris, Justices.]
For all these reasons, I am of opinion that the plaintiff has failed to state in his complaint a sufficient cause of action. The judgment of the special term should therefore be reversed, and judgment rendered for the defendants upon the demurrer, but with liberty to the plaintiff to amend his complaint, upon payment of costs.