pair, &c., there was a proviso that the lessee might determine the term at the end of the first three or five years, giving six months' previous notice, and that then from and after the expiration of such notice, and payment of all rents and duties to be paid by the lessee and performance of all his covenants until the end of the three or five years, the indenture should cease and be utterly void, it was held that the payment of rent and performance of the other covenants were conditions precedent to the lessee's determination of the term at the end of the first three years, and that his merely giving six months' notice, expiring within the first three years, was not sufficient for that purpose. (x) or of covenants that are the whole conside ration of the defendant's In like manner where the performance of the plaintiff's covenant appears to constitute the whole consideration of the defendant's covenant, the former is in the nature of a condition precedent, and performance of it must be averred. (y) covenants, In respect of which a material distinction exists between cases where the covenant goes to the whole consideration, and where it only goes to part. In the first case, performance must be averred. But where the covenant of the plaintiff goes only to part of the consideration of the defendant's covenant, and a breach of such covenant may be paid for in damages, it is not a condition precedent, but an independent covenant; and an action may be maintained by the plaintiff for a breach of the defendant's covenant without averring performance in the declaration. (2) Where the defendant's covenant is made wholly in consideration of the plaintiff's covenant, and both are to be performed at the same time, performance, or at least an offer to perform, on the part of the plaintiff must be averred. (a) (a) Porter v. Shephard, 6 T. R. 665. (y) Ughtred's case, 7 Rep. 74. Thorpe v. Thorpe, Salk. 171. S. C. Lutw. 250. Com. Rep. 98. Ld. Raym. 235, 662. Duke of St. Albans v. Shore, 1 H. Bl. 270. Large v. Cheshire, 1 Ventr. 147. (2) Boon v. Eyre, Bl. Rep. 1312. S. C. 1 H. Bl. 273. n. (a.) Campbell v. Jones, 6 T. R. 573. (a) Glazebrook v. Woodrow, 8 T. R. 366. Heard v. Wadham, 1 East, 619. And see 1 Wms. Saund. 320. n. (4.) must be averred generally. But where a covenant is part only of the consideration it is not a condition precedent but an independent covenant. (b) Where, however, the defendant's covenant is wholly in consideration of the plaintiff's covenant, but the covenant of the plaintiff is to be performed at a period subsequent to the performance of that of the defendant, an averment of performance is unnecessary. (c) And when it appears that the mutual covenants of the plaintiff and defendant are wholly independent of each other, and that either party has covenanted to perform, or abstain from a certain act, without reference to the conduct of the other, an averment of performance will be not only unnecessary but improper. (d) In averring performance, the plaintiff must shew to the Court with certainty that he has exactly complied with the very intent of the covenant to be by him performed. (e) This, however, he may do in general terms, without alleging particularly how he performed it. (ƒ) The averment of performance, however, may be rendered unnecessary by the conduct of the defendant, in either discharging or hindering the plaintiff from the execution of the covenant. In either of which cases the plaintiff must expressly aver that, being ready and willing, and offering, to perform his covenant, he was, either by the negligence, refusal of permission, or other act of the defendant, prevented from complying therewith; or that the defendant altogether dispensed with it, and discharged him from its performance. (g) (b) Carpenter v. Crosswell, 4 Bing. 409. (c) Thorpe v. Thorpe, sup. Russen v. Coleby, 7 Mod. 236. (d) Ibid. Dawson v. Myer, Str. 712. Campbell v. Jones, 6 T. R. 570. (e) Com. Dig. Pleader. (C. 59, 60.) (f) Ibid. (C. 61.) (g) Scot v. Mayn, Cro. Eliz. 450. Jones v. Barkley, Dougl. 684. Hotham v. East India Company, 1 T. R. 638. Smith v. Wilson, 8 East, 443. of omission. In all cases where performance, or that which is equivalent Consequences to performance, ought to be alleged, the defendant may take advantage of its omission by demurrer, if the condition precedent appear upon the face of the pleadings: or he may specially plead the non-performance of such condition in bar of the plaintiff's action. That is, where the covenant of plaintiff goes to the whole consideration of the defendant's covenant. For if it go only to part, he cannot make its nonperformance a matter of defence; but will be left to bring his cross action against the plaintiff for the breach of his covenant. Thus, where A. by deed conveyed to B. the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of 500%. and an annuity of 160l. for life, and covenanted that he had a good title to the plantation, was lawfully possessed of the negroes, and B. should quietly enjoy; and B. covenanted that A. well and truly performing all and every thing therein contained on his part to be performed, he would pay the annuity; in an action by A. against B. on this covenant, the breach assigned was the non-payment of the annuity. Plea, that A. was not at the time legally possessed of the negroes on the plantation, and so had not a good title to convey. The Court of King's Bench, on demurrer, held the plea to be ill, and added, that if such plea were allowed, any one negro, not being the property of A., would bar the action. The whole consideration of the covenant on the part of B., the purchaser, to pay the money, was the conveyance by A. the seller to him of the equity of redemption of the plantation, and also the stock of negroes upon it. The excuse for non-payment of the money was, that A. had broke his covenant as to part of the consideration, namely, the stock of negroes. But as it appeared that A. had conveyed the equity of redemption to B., and so had in part executed his covenant, it would be unreasonable that B. should keep the plantation, and yet refuse payment because A. had not a good title to the negroes. (a) Besides the damages sustained by (a) Boone v. Eyre, Bl. Rep. 1312. N N Averment of request. the parties would be unequal, if A.'s covenant were held to be a condition precedent; for A. on the one side would lose the consideration money of the sale, but B.'s damage on the other might consist perhaps in the loss only of a few negroes. (i) nant. Where there is a negative covenant on one side, in consideration of which there is an affirmative covenant on the other, the breach of the negative covenant is no answer to an action for the non-performance of the affirmative coveAs if A. covenant not to do a certain thing, in consideration whereof B. covenants to give him 100%.; this covenant of A. (though it be expressed to be the consideration of B.'s covenant) is not a condition precedent; because a negative covenant is not to be performed until it becomes impossible to break it. (k) When it appears that the defendant's covenant is to do a certain act upon request, the request is in the nature of a condition precedent: and the plaintiff must specially aver that the defendant has been duly requested to do such act; otherwise the declaration will be bad on a general demurrer, or even after the verdict. (7) If, however, it appear that the defendant has rendered it impossible that his covenant should be performed, it seems that an averment of request is unnecessary: as where defendant covenanted to grant a lease of certain buildings to the plaintiff, upon request, and the plaintiff, without averring any request assigned as a breach that the defendant did not grant him a lease, but then and there pulled down the buildings. (m) Besides the averment of performance of particular covenants, it seems formerly to have been usual for the plaintiff to make a general averment of performance of all covenants (1) Per Ashhurst, J., 6 T. R. 573. (k) Hunlocke v. Blacklowe, 2 Saund. 156. Platt on Covenants, 20. (1) Birks v. Trippet, 1 Saund. 32. Selman v. King, Cro. Jac. 183. Hill v. Wade, ibid. 523. Selw. N. P. 111. 9th edit. (m) Lambert v. Lane, Lutw. 308. Sed quære. by him to be performed. (n) This is mere form, and is now generally disused. (0) of breach, The declaration must assign a breach, and shew with Assignment certainty and exactness that the covenant upon which the action is brought has been broken. (p) This must follow the terms, or, at least, the import and effect, of the covenant; for if it be wider or narrower than the covenant, it will be bad. (q) If the covenant be in the disjunctive, the breach should likewise be so; as if it be that the defendant or his executors will repair, the breach must be that neither he nor his executors did repair. (r) If the covenant be general, the breach may also be general; and where it can be done with certainty and precision, it is sufficient to negative the words of the covenant. (s) If the breach be improperly assigned, the defendant may demur generally. (t) But it will be aided after verdict. (u) And if there be a breach well "assigned, and another ill, the plaintiff on demurrer to the entire declaration shall have judgment for the breach well assigned, and shall be barred for the resi due. (v) Where the action is against the original lessee, the breach need not extend to assigns. Therefore, where an agreement was set out in the declaration to convey to H. and his assigns, and the breach was that the defendant did not convey to H., it was holden good. (w) But where the co (n) See Thursby . Plant, 1 Saund. 234. b. 235. (0) Hill v. Thorn, 2 Mod. 309. Jodderell v. Cowell, Ca. temp. Hardw. 343, sed vide Chit. on Plead. Vol. II. p. 364, 6th edit. (p) Com. Dig. Pleader, (C. 45, 48.) (q) Ibid. (C. 46, 47.) (r) Ibid. (C. 45.) Colt . Howe, Cro. Eliz. 348. (s) Robert Bradshaw's case, 9 Rep. 60. b. S. C. Salman v. Bradshaw, Cro. Jac. 304. Knight v. Keech, Skin. 344. Brigstock v. Stanion, Ld. Raym. 106. Procter v. Burdet, 3 Lev. 170. S. C. 3 (t) Com. Dig. Pleader, (C. 44.) (u) Ibid. (C. 48.) Anon. Sir T. Jones, 125. Kirby v. Hansaker, Cro. Jac. 315. (v) Bressy v. Humphreys, Cro. Jac. 557. Pinkney v. Inhabitants of East Hundred, 2 Saund. 380. Com. Dig. Pleader, (C. 32, 48.) (w) Gyse v. Ellis, Str. 228. Smith v. Sharp, 5 Mod. 133. S. C. 1 Salk: 139. |