the goods supplied can recover on them unless there has been a total failure of the consideration. If the consideration fails partially, as by the inferiority of the article furnished, the buyer must seek his remedy by a cross action. (o) The contract also may be divisible, but the security is entire."

An agreement was entered into between the plaintiff and the defendant for the sale of the lease of a house. The defendant accepted a bill of exchange for the purchase-money, and was let into possession of the premises, but the plaintiff afterwards, before the bill of exchange became due, refused to grant the lease pursuant to the agreement; and it was held that this was no answer to the action on the bill; that as the defendant had been let into possession of the house, and there had not been a total failure of the consideration, he must pay the amount of the bill, and bring his cross action upon the agreement to recover damages for the nonexecution of the lease. (p)

So, where a contract was entered into for the purchase of goods of" good quality and moderate price," and the price was estimated at 10007., and bills were given for that amount, it was held to be no defence to an action on the bills that the goods turned out to be worth much less than the estimated price, and that the acceptor had paid on the bills more than the real value of the goods. (4)

SECTION III.

OF MUTUAL CONDITIONS, AND DEPENDENT AND INDEPENDENT COVENANTS AND PROMISES.

It has been said that executory covenants, inter partes, may be divided into three classes. First, such as are conditional and dependent, in which the performance of the one depends upon the prior performance of the other. Secondly, such as are independent, where either party may recover damages from the other for the injury he may have received by a breach of the covenant in his favour, and where it is no excuse for the defendant to allege a breach of the covenant on the part of the plaintiff; and, thirdly,

(0) Morgan v. Richardson, 1 Camp. 40 n.

Pye v. Gwinn, 2 Camp. 348.

(p) Moggridge v. Jones, 3 Camp. 38; 14 East,

486 s. c.

(g) Obbard v. Betham, M. & M. 483.

such as are mutual conditions, to be performed at the same time; where, if one party was ready, and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is "obliged to do the first act." (a) "This last rule applies to every case of a sale of property where the one party engages to convey on a day certain, and the other to pay at the same time, and this whether the one is stated in terms to be the consideration for the other or not. In neither case will the court compel one party to perform his part until the other has done or has offered to do his own." (b) If A. covenant to convey an estate to B., and in consideration thereof B. covenants to pay A. a sum of money, these covenants constitute mutual conditions, and neither of the parties can maintain an action without showing performance of, or an offer to perform, his part. It is a sufficient performance, however, of the vendor's part of the contract if he is "ready and willing" to execute a conveyance; inasmuch as in the absence of an express stipulation to the contrary, it is the duty of the purchaser to prepare the conveyance, and tender it to the vendor for execution. (c)

Independent covenants and promises.—But "if there be a day set for the payment of the money or for the doing the thing which one promises and agrees to do for another thing, and that day is to happen, or may happen before the other thing can be performed, an action may be brought for the money before the thing be done, for it appears that the party relied upon his remedy upon the contract," and not upon a previous or concurrent performance. (d)

By articles of agreement under seal, the plaintiff agreed to sell and the defendant to purchase of the plaintiff certain land and premises, and the defendant covenanted to pay on or before a fixed day, as the consideration for such sale and purchase, a certain sum to the plaintiff, and it was held, that as the time was fixed for the payment of the purchase money, the covenant was independent, and that an action was maintainable upon it for the money before any conveyance of the property had been tendered or accepted, each party having relied upon his remedy by way of action upon the covenants, and not made the performance of them a condition precedent. (e)

(a) Jones v. Barkley, Doug. 684. Kingston v. Preston, cited ib. p. 691.

(b) Le Blanc, J., 8 T. R. 374. Buller, J., 4 ib. 765. Heard v. Wadham, 1 East, 619. Lord Denman, 2 B. & Ad. 157. Kemble v Mills, 2 Sc. N. R. 121.

(c) Poole v. Hill, 6 M. & W. 835 Laird v. Pim, 7 M. & W. 474, 485. Stephens v. De

Medina, 4 Ad. & E. N. S. 422. De Medina v.
Norman, 9 M. & W. 820.

(d) Holt, C. J., 12 Mod. 461; 1 Salk. 113, 171. Parker v. Rawlings, 12 Moore, 529; 4 Bing. 280, s. c. Spiller v. Westlake, 2 B. &

Ad. 157.

(e) Pordage v. Cole, 1 Saund. 319, h. Mattock v. Kinglake, 10 Ad. & E. 50. See also

An indenture was made between Sir Ralph Poole, knight, of the one part, and Sir Richard Polchester, of the other part, whereby Sir Ralph did covenant with Sir Richard to serve him with three esquires in the wars of France, and Sir Richard covenanted with Sir Ralph to pay so much money for the service, and it was further agreed that half the money should be paid in England on a certain day before they went to France, and the rest by quarterly payments; and it was held, that the action might be brought for the money before the service, and that each had equal remedy, the one for the money, the other for the service. (ƒ)

An action of covenant was brought upon an agreement under seal, whereby the plaintiff agreed to take the defendant into partnership, and also to assign over to him a moiety of the interest in the house, to commence "from and after” a day named, on the terms and conditions that the defendant should pay to the plaintiff" on or before" the day specified, the sum of 3007., as a premium or fee to be admitted into the said partnership; and the breach alleged was, that the defendant had not paid the said sum, although the plaintiff was willing to take him into the said partnership. The defendant pleaded that no articles of co-partnership had been made and no assignment to him of half the interest in the house; but it was held, that the covenant of the defendant to pay the money was precedent to the plaintiff's covenant, and was broken before that was to be executed, and that the plaintiff consequently was entitled to recover the amount. (g)

The covenants of the one party are sometimes mutual and dependent, whilst those of the other are independent. "The one may wish to reserve an option to himself, and may therefore qualify his covenant; but he may not choose to give any option to the other party, and may insist upon having from him an unconditional and unqualified covenant." (h) We have already seen that if a deed purports and professes to grant and convey an interest, the covenants of the grantee immediately relating to that interest, and founded on the grant thereof, are conditional and qualified, so that the liability of the grantee upon them, is dependent upon the interest or some portion thereof being actually transmitted to him. But this is not the case with respect to the covenants of the grantor of that interest; his covenants are independent and unconditional, and he is consequently liable upon them, whether the interest he professes to convey

French v. Campbell, 2 H. Bl. 178. Wilks v.
Smith, 10 M. & W. 360.

(f) Pool v. Tolcester, cited Williams Saunders, vol. 1, 320, b. ; & 7 Co. 10 b.

(g) Walker v. Harris, Anstr. 245. See also Terry v. Duntze, 2 H. Bl. 389.

(h) Ellenborough, C. J., 3 M. & S. 321.

does or does not pass. If, for example, a lessor professes to grant a lease, and covenants with the lessee "that he, the lessor, is owner at the time of the lease, or that the lessee shall quietly enjoy, or shall be discharged and saved harmless from certain incumbrances, the lease may be void, but the lessor is liable upon his covenants. (i) So, if a man by deed purports to grant lands to another in fee, and no fee in the lands passes, the grantor is nevertheless chargeable upon his covenants. (k) In an action of covenant upon a deed of bargain and sale of lands, it appeared that the deed had not been inrolled pursuant to the statute, and was consequently void, and it was contended that the covenants of the bargainor or vendor, were void also, but the court held, that their validity did in no respect depend upon the passing of the estate by the deed; the deed might be of no effect as a bargain and sale, but the covenants of the vendor were good and could be enforced. (1) A rector, by indenture, granted a rent charge out of his benefice, and covenanted to pay the same to the grantee. The grant was void by the statute 13 Eliz. c. 20, which declares that "all charging of benefices with any pension out of the same shall be utterly void." Yet the rector was holden liable upon his covenant. (m) A bill of sale of a ship transferring the property in the ship by way of mortgage was held to be void for want of reciting the certificate of registry therein, as required by stat. 26 Geo. 3, c. 60, s. 17. Yet the mortgagor was held liable upon his covenant contained in the same instrument for the repayment of the money lent. (n) Thus, while the covenants of the one party are conditional and dependent, the covenants of the other party may be unconditional and independent, as is further exemplified in the case of contracts of an executory nature, where the liability of the one party is dependent upon the performance of some prior act by the other, whilst the covenant of that other is absolute and unqualified for the performance of such prior act.

It is a principle of the civil law, that if the fulfilment of the condition be hindered by the party whose interest it is that it be not fulfilled, whether it depend on his own act or not, the condition with respect to him shall be deemed to be accomplished. And he shall be obliged to do what he has bound himself to do, to give, or or suffer, &c. (o) And by the

(2) Waller v. Dean and Chapter of Norwich, 1 Brownl. 21; Owen, 136.

(k) Jones v. King, 4 M. & S. 188.

(1) Northcote v. Underhill, 1 Raym. 388; 1 Salk. 199, s. c.

(m) Mouys v. Leake, 8 T.R. 411.

(n) Kerrison v. Cole, 8 East, 231. See also Gaskell v. King, 11 East, 164. Wigg v. Shuttleworth, 13 East, 87, 89. Howe v. Synge, 15 East, 439.

(0) Jure civili receptum est, quoties per eum cujus interest conditionem non impleri, fiat, quo minus impleatur, perinde haberi ac si impleta conditio fuisset. Quod ad libertatem, et legata, et ad hæredum institutiones perducitur quibus exemplis stipulationes quoque committuntur, cum per promissorem factum esset, quominus stipulator conditioni pareret, 1. 161, ff. de reg. jur. Domat, 1. 1, tit. 1, s. 4, xviii.

law of England, where the one party "by doing a previous act would acquire a right to any debt or duty, and the other prevents him from doing it, he acquires the right as completely as if it had been actually done.”(p) If one man is to pay money to the other, upon an act being done, and the other is ready and offers to do the act, and the party hinders him, this is tantamount to performance, and the party acquires a complete right to the money, because it is a principle, that he who prevents a thing from being done, shall not avail himself of the non-performance which he has occasioned. (q)

An agreement was entered into between the plaintiff and the defendant, that the plaintiff should pull down and prostrate the walls of three houses, and erect for the defendant on the site thereof, a malt-house and other buildings, and receive a certain sum of money for his pains, and the plaintiff showed that he was ready, and offered to do the work, but that the defendant prevented him; and it was held, that the defendant was bound to pay the money, and that he ought not to take advantage of his own wrong. (r)

And if the act cannot be completed without the concurrence of the party for whom it is to be done, if the party who is to do the act offers, and does as much as he can without such concurrence, he does what is equivalent in law to actual performance of the act, and may insist upon any recompense he was to have upon such performance. But the law requires him to do his utmost endeavours to entitle himself to the action. "A tender or offer to do a thing cannot amount to a performance in law, unless the tender or offer is actually rejected, or unless it is to be made at a particular time or place, and the party to whom it is to be made does not attend. And a man who would insist on a tender or offer at a particular place, and a non-attendance by the party to whom it was to have been made, must show that he was ready at the place up to the last moment that the tender could properly have been made." (s)

(p) 8 East, 443, Jones v. Barkley, 2 Doug. 694.

(9) Holt, C. J., Lancashire v. Killingworth, 1 Raym. 686; 1 Com. 116; Co. Litt. 206, b. Heard v. Wadham, 1 East, 619, 630; 3 Sc. N. R. 215.

(r) Peters v. Opie, 1 Ventr. 177; 2 Saund. 350. Collins v. Price, 5 Bing. 132. Ferry v. Williams, 8 Taunt. 70; 1 Moore, 498, s. c.

(s) Lancashire v. Killingworth, 1 Raym. 686; 3 Salk. 623, s. c.