
    Steele vs. M’Kinnie.
    A. covenants, on the happening of a contingency, to give his note to B, payable at a future day; when the contingency happens, an action of covenant will lie, on a failure to give the note to cover the sum to be by it secured.
    Where a covenant was made to pay on the 25th of December 1828,' with interest, whatever two hundred acres of land (describing it) might be adjudged worth, by persons to be chosen, and when such valuation was made, the covenantor vtas to give his note for the money and interest: Held, that upon a failure to give the note on the valuation being made, the covenantee could immediately bring covenant and recover the amount of the valuation, with interest up to the 28th day of December 1828.
    Where a party wishes to take advantage of a variance between the covenant declared on and the one sued upon, he must crave oyer and demur.
    A plea of covenant performed, admits the covenant as set out in the declaration.
    This is covenant brought twenty-fifth of June 1828, on a sealed instrument, to pay on the twenty-fifth of December 1828, with interest, whatever two hundred acres of land (describing it) might be adjudged to be worth, by persons to be chosen, &c. and when such valuation was made, it was covenanted, that M’Kinnie would give his note to pay as aforesaid. Averment, that the land was adjudged worth $600, and breach assigned, that the said M’Kinnie had failed and refused to give his note, to plaintiff’s damage, &c. Plea, covenants performed and issue; trial, verdict and judgment in the county court; writ of error to the circuit court; judgment reversed; writ of error to this court.
   Peck, J.

delivered the opinion of the court.

The question debated is, whether on the breach assigned, the plaintiff should have recovered the sum of $600, with interest? We are of opinion he ought. The issue was on the performance of the covenant; in that the defendant has failed. The plaintiff was entitled to the note at the time of the valuation; it was the essence of the agreement, as much as the payment of the money. -That payment was to be secured by giving the note, and on failure of giving the note, the covenant was broken. On its face, it showed-the damages six hundred dollars, with interest.

It is said, however, because there was a future day fixed for the payment of the damages, a verdict to the whole amount was excessive; and that the party, to have had-the whole, should have waited until the twenty-fifth of December, and suing before that day, the damages would only be nominal, or at least not to the amount of the verdict. Answer: The action well lay, when the. defendant had broken his covenant, by failing to give the note. The plaintiff could have but one satisfaction, (Com. Dig. 229;) and who will pretend that the note, if given, would not have been of the value of the sum recovered? Shall the defendant be heard to say, his note with interest is worth less than its nominal amount? We think the plea does not lie with him.

It is again said, that the covenant is misrecited in the declaration; that, in fact, it is not that the note shall be given with interest. Answer: We cannot go beyond the declaration and plea. The party should have craved oyer and demurred for the variance, if it existed. He has not done so; but on the contrary, by his plea of covenant performed, admits the covenant as set out. The objection comes too late. The merits were reached by the verdict and judgment of the county court. .Proceeding on the premises in the record, judgment of the circuit court reversed, and judgment of the county court affirmed. 1 Com. Dig. 22: Salk. 666: 2 Ld. 814: 2 Esp. N. P. 224.

Judgment reversed.  