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been evidence of a new contract between the parties (40); but here the plaintiff has resorted to the original agreement, under which the defendant only engaged to pay in the event of the ship's arrival at Liverpool. That event has not happened, and therefore the plaintiff cannot recover in this form of action.

By charter-party the freighter covenanted to pay to the owner freight at and after the rate of so much per ton, per month, for the term of six months at least, and so in proportion for less than a month, or for such further time than six months as the ship might be detained in the service of the freighter, until her final discharge, or until the day of her being lost, captured, or last seen or heard of: such freight to be paid to the commander of the ship in manner following: viz. so much as might be earned at the time of the arrival of the ship at her first destined port abroad, to be paid within ten days next after her arrival there, and the remainder of the freight at specific periods: it was holden P, that this constituted one entire covenant, and that the arrival of the ship at her first destined port abroad was a condition precedent to the owner's right to recover any freight, and that the ship having been lost on her outward voyage, the owner was not entitled to recover freight at so much per calendar month to the day of the loss.

p Gibbon v. Mendez, 2 B. and A. 17.

(40) The principal cases on the subject of apportionment of freight are Lutwidge v. Grey, D. P. 23 Feb. 1733.Luke v. Lyde, 2 Burr. 882, and i Bl. R. 190.-Baillie v. Modigliani, Park's Ins. 53.; but not reported elsewhere. These three cases are stated at length in Abbott on Shipping. The case of Luke v. Lyde, was much commented upon in Cook v. Jennings, 7 T. R. 381. and in Mulloy v. Backer, 5 East. 316. See further on the same subject, Ward v. Felton, 1 East. 507.-Hunter v. Prinsep, 10 East. 378. Liddard v. Lopes, 10 East. 526.-Ritchie v. Atkinson, post. p. Christy v. Rowe, 1 Taunt. 300.-Mitchell v. Darthez, 2. N. C. 555.-" It is a settled rule, even in the case of deeds, that if there be a condition precedent in a deed, and it is not performed, and the parties proceed with the performance of other parts of the contract, although the deed cannot take effect, the law will raise an implied assumpsit. Upon this ground freight is daily recovered in actions of assumpsit on implied promises, substituted for the charter-parties by deed." — Per Cur. in Burn v. Miller, 4 Taunt. 748. But see a limitation of this remark in Schack v. Anthony, 1 M. and S. 573. See also Pinder v. Wilks, 5 Taunt. 612.

From the preceding cases it may be collected, that whereever there is a condition precedent on the part of the plaintiff, performance, or that which is equivalent to performance (41), must be alleged and proved, otherwise the action cannot be supported; and, consequently, the defendant may plead non-performance of the condition precedent, in bar of the plaintiff's action: or, if the averment of performance be entirely omitted, or imperfectly made (42) the defendant may take advantage of it on demurrer.

The reader who is desirous of pursuing this branch of the subject further, is referred to the analogous cases under tit. Assumpsit, ante, p. 112. To the cases there abridged, the following may be added: Hesketh v. Gray, Say. 185.Collins v. Gibbs, 2 Burr. 899.-Campbell v. French, 6 T. R. 200. See also Smith v. Wilson, 8 East, 437. Storer v. Gordon, 3 M. and S. 308.

Having thus endeavoured to illustrate the nature of conditions precedent, I shall proceed to the next object of consideration, viz. concurrent acts or covenants.

Concurrent Acts.—Where reciprocal acts or covenants are to be performed by each party at the same time, they are technically termed concurrent acts or covenants, and in this case, as well as in the case of dependent covenants, one party cannot maintain an action against the other, without averring performance, or that which is equivalent to performance, of the acts or covenants to be performed on the plaintiff's part. As where, in covenant, the declaration stated, that by articles of agreement under seal, the plaintiff covenanted to convey to the defendant, on or before the 1st of August, 1797,

q Glazebrook v. Woodrow, 8 T. R. 366, cited in 2 Bos. & Pul. N. R. 236, and

in Rose v. Poulton, 2 B. & Ad. 832.

(41) “Where a person, by doing a previous act, would acquire a right to a debt, or duty ; by a tender to do the previous act, if the other party refuse to permit him to do it, he acquires the right as completely as if it had actually been done.” Arg. Jones v. Barkley, Doug. 685, cited by Lord Ellenborough, C. J. delivering judgment, in Smith v. Wilson, 8 East, 443. --So if the plaintiff has been discharged by the defendant from the performance of the condition, the action may be maintained. See Jones v. Barkley, Doug. 684. So where the plaintiff has been prevented from the performance by the neglect and default of the defendant. 1 T. R. 645.

(42) As to what will be a sufficient averment in this respect, see Jones v. Barkley, Doug. 684,

a school-house and ground; and on or before the 24th June, 1796, to surrender up the premises, and deliver over the scholars to the defendant; and, in consideration thereof, the defendant covenanted to pay the plaintiff a sum of money, on or before the 1st of August, 1797, with interest from the 1st of January next preceding the said Ist of August; the plaintiff then averred, that he surrendered up the premises to defendant on the 24th of June, 1796, and delivered over the scholars; and although the plaintiff had well and truly performed every thing contained in the articles on his part, yet defendant had not paid the money and interest. The defendant pleaded that he was ready to accept a conveyance of the premises, and at the same time to pay the money to the plaintiff, if he would have made such a conveyance, but the plaintiff did not, on or before the 1st of August, or at any time since, convey the premises to defendant. On demurrer, it was holden, that as the substance of the consideration to entitle the plaintiff to receive the money, was the making the conveyance, payment of the money could not be enforced, until the conveyance was made, or at least offered to be made by the plaintiff; Lawrence, J. observing, that nothing could be inferred in favour of the plaintiff in this case from 'part execution of the contract; because, though the defendant was to be put in possession in June, 1796, and the money was to be paid in August, 1797, yet as that also was the time fixed for the execution of the conveyance, it was plain, that the defendant did not intend to part with his money until his title was secure. So where A. covenanted that he would, on or before a certain day", convey land to B., by such conveyance as B.'s counsel should advise; in consideration of which B. covenanted to pay A., at or upon the execution of the conveyance, a certain sum of money; it was holden, that A. could not maintain covenant against B. for non-payment of the money, without shewing that he had conveyed; or that he was ready at the day to have conveyed, what he had covenanted to do, and that he had done every thing which lay upon him to do for that purpose, but that he was prevented from so doing by some act, or omission, or neglect, on the part of the defendant. Secus, where the vendee by a distinct instrument, e. g. a promissory note, agrees to pay the money on a particular day. Spiller v. Westlake, 2 B. & Ad. 155.

Mutual and independent Covenants.--Where covenants are mutual and independent, one party may maintain an action against the other for the breach of his covenants, without averring a performance of the covenants on his, the plaintiff's part; and the defendant cannot plead non-performance of such covenants on the part of the plaintiff in bar of the plaintiff's actions.

r Heard v. Wadham, 1 East, 619.

In covenant on articles of agreement, whereby the plaintiff, who was master of a vessel, covenanted to make use of the same in the coal trade, for the defendant's service; and, among other things, covenanted that during twelve calendar months (the time the vessel was hired for) he would pay

all seamen's wages yearly; in consideration whereof, the defendant covenanted to pay the plaintiff 421. every month during the year; the non-payment whereof was the breach assigned. To this the defendant pleaded, that the plaintiff did not pay the seamen according to his covenant; on demurrer to this plea, it was insisted by the plaintiff, that these were mutual covenants, and that though the words were “in consideration thereof," yet in the nature of the thing, this could not be a condition precedent; for the payment of the seamen, by the plaintiff, was to be yearly; of the plaintiff, by the defendant, monthly; so that from the manner of covenanting it was impossible the performance of the act to be done by the plaintiff should be necessary to entitle him to an action against the defendant for not doing the act he had covenanted to do; and the case of Thorp v. Thorp was cited, where this distinction is taken by Holt, C. J. in the resolution of that case; Judgment for the plaintiff; Lord Hardwicke, C. J. observing, that there could not be any condition precedent here for the reason given; and the resolution in Thorp v. Thorp was certainly good law; for these cases did not depend so much on the manner of penning the covenants, as the nature of them.

It was agreed between plaintiff and defendantų, by indenture, that in consideration of 500l. plaintiff should instruct defendant in bleaching materials for making paper, and permit defendant, during the continuance of a patent, which plaintiff had obtained for that purpose, to bleach such materials according to the specification. In pursuance of this agreement, the plaintiff, in consideration of 250l. paid, and of the further sum of 2501. to be paid, to the plaintiff, in the manner hereinafter mentioned, covenanted that he would, with all possible expedition, instruct the defendant, in the manner of bleaching the materials, The defendant, in con

s Dawson v. Myer, Str. 712.
t Russen v. Coleby, T. 7 Geo. 2. B. R.

7 Mod. 235. Leach's edit.

u Campbell v. Jones, 6 T. R. 570.

recognized in Carpenter v. Creswell, 4 Bingh. 409.



sideration of the plaintiff's covenants, covenanted that he would, on or before the 25th of February, 1794, or sooner, in case plaintiff should before that time have sufficiently taught defendant in bleaching the materials, pay the plaintiff the further sum of 2501. În covenant on the preceding agreement the breach assigned was, the non-payment of the 2501. Special demurrer, that it was not averred that plaintiff had instructed defendant in the manner of bleaching the materials. Lord Kenyon, C. J. delivering the opinion of the court said, that whether these kinds of covenants be or be not independent of each other, must certainly depend on the good sense of the case. If one thing is to be done by a plaintiff before his right of action accrues on defendant's covenant, it should be averred, in the declaration, that such thing was done. “Where there are mutual promises, yet if one thing be the consideration of the other, there a performance is necessary, unless a day is appointed for performance.Per Holt, C. J. Salk. 113. “If a day be appointed for the payment of the money, and the day is to happen before the thing can be performed, an action may be brought for the payment of the money, before the thing be done,” ib. 171. Upon the authority of these cases, the judgment of the court must be in favour of the plaintiff, if upon the true construction of the deed, a certain day be fixed for the payment of the money, and the thing to be done may not happen until after. The plaintiff in this case covenants with all possible erpedition, not by any fixed time, to instruct the defendant, and in consideration of the plaintiff's covenants, the defendant covenants, that he will, on or before the 25th day of February, or sooner, in case the plaintiff should before that time have instructed the defendant, pay him the further sum of 2501. The intent of the parties appears to be that the payment might be accelerated, but should not in any event be delayed. Judgment for plaintiff. N. in a subsequent case, in 8 T. R. 370. Kenyon, C. J. speaking of the preceding case of Campbell v. Jones, said, “The instruction to be given was not to be, and could not, in the nature of the thing be, performed at the same time with the payment of the money by the defendant for which a certain time was limited, whereas no time was limited for giving the instruction;" and Lawrence, J. in the same report, p. 374, observing on this case, said, “that the instruction might, consistently with the plaintiff's covenant, as well be given after as before the time specified for the payment of the money; and therefore, it was not necessary to be averred in an action to recover the money." I cannot dismiss the consideration of this subject, without taking notice

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