
    Moss v. Stipp.
    Argued, Friday, Dec. 13, 1811.
    1. Amended Declaration Idea in Abatement Thereto —If the plaintiff be permitted to amend Ms declaration, by consent of parties, after issue joined on apleato the action: the defendant ought not to be permitted to plead in abatement any variance between the amended declaration and the writ, which equally existed between the writ and the original declaration. See Pane and Fairfax v. Green, 2 Munf. 297, and Bradley v. welch, 1 Munf. 284.
    2. Agreement for Sale of Land — Action on — Declara^ tion — Allegation of Breach. — In an action upon a written agreement for the sale of a tract of land, setting forth that the vendor agreed to give the vendee possession, and a conveyance free of encumbrances, on or before a certain day: for which the vendee agreed to pay to the vendor part of the purchase money on the same day, and to give him for the balance a deed of trust or such other security as he might require; and that the conveyance was not to be executed until the first payment was made and security given; the declaration, in behalf of the vendor, sufficiently charged a breach by stating that the plaintiff was, on that day, in lawful and peaceable possession of the land and ready to give the defendant possession, with a proper conveyance, clear of all encumbrances; but that the defendant failed to make the payment and give the security.
    3. Same — Same—Same.—what pleas to such a declaration are insulflcient?
    Upon an appeal from a judgment of the District Court holden at Haymarket.
    The writ in this cause was (in consequence of some misinformation) issued in covenant, when it should have *been assumpsit; and, after the return of the writ, a declaration in covenant was filed, and a writ of inquiry awarded. At the October term, 1805, the cause stood upon the trial docket; and the plaintiff, who lived at a very considerable distance from his counsel, attended, with the original article of agreement, upon which the suit was founded, or a correct copy thereof, whereby his counsel discovered that the said agreement was not under seal. In consequence of this discovery, the said counsel was about to apply to the Court for leave to amend his declaration, by striking out those parts of it which describe the said article of agreement as a covenant under seal; but, being informed, at the clerk’s table, that the Court had, during the same term, declared that, when a suit stood upon a writ of inquiry, amendments might be made without troubling the Court; and this cause still standing on a writ of inquiry, he struck out those parts of the said declaration. Afterwards, at the same ierm, the defendant, by his counsel, set aside the writ of inquiry, and pleaded covenants performed. At May term, 1806, the defendant’s counsel, not adverting to the circumstance of the said writ of inquiry having been already set aside, procured another order for setting the same aside, and again pleaded covenants performed, and obtained-leave to file additional pleas at any time within three months. At October term, 1806, he withdrew his former plea, and, by another attorney, then first employed, pleaded non assumpsit, and two .special pleas. The plaintiff joined issue to the plea of non assumpsit, and filed replications to the special pleas; which replications were followed by rejoinders, to which the plaintiff demurred.
    The Court having, on the argument of the said demurrer, intimated that the declaration might possibly be defective, for want of a requisite averment; the plaintiff, at October term, 1706, moved for leave to amend: whereupon, the pleadings up to the declaration were set aside, by consent, and leave granted him to amend his *declaration ; which amended declaration he filed on the last day of that term, and gave’the defendant a rule to plead: and the cause was continued, by consent, at the plaintiff’s costs, without losing its place on the docket.
    On the fourth day of May term, 1808, and before the cause was called for trial, the defendant, by his counsel, craved oyer of the writ and declaration, tendered a plea in abatement, on the ground of the variance between them, and moved the court to permit him to file the said last-mentioned plea; but the Court overruled the motion ; to which opinion he filed a bill of exceptions, containing a statement of the circumstances herein recited.
    The plaintiff’s amended declaration was in the following words; “Fairfax County, to wit, John Stipp, jun’r, complains of Robert Moss, in custody, &c. of a plea, for that, whereas an article of agreement was made and concluded, on the 25th day of February, in the year of our Ford, 1804, at the County of Fairfax, aforesaid, between the said plaintiff of the one part, and the said defendant of the other part, which said article witnessed that the said plaintiff had that day bargained and sold to the said defendant the tract of land and plantation whereon he then lived, containing one hundred and seventy-six and one half acres, and to give peaceable and quiet possession, clear of all encumbrances, on or before the first day of May next ensuing the date of the said article: the crop of grain then seeded, and all other advantages arising from the premises, to go to the use of the said defendant; for which he, the said defendant did agree to pay the said plaintiff, the sum of six thousand four hundred dollars in the following manner; that is to say, two thousand four hundred dollars, on the first day of May next ensuing the date of the said article, and the balance of four thousand dollars in four annual payments from the said first day of May next ensuing the date of the said article. For which annual payments, the said defendant did agree to give the said plaintiff a deed of *trust on the premises as security for said payment; or such other security as the said plaintiff might require. And further, the plaintiff was to have the liberty to remove the wood, that might at that time be cut up, and remaining on a piece of new ground, cut down through that winter; but not to cut, sell, or dispose of any other whatever. It was also understood by the parties aforesaid, that the deed was not to be made until the aforesaid first payment was made, and the security given for the residue as aforesaid. In witness whereof, the parties did thereunto set their hands the day and date above written. Which said articles of agreement the said plaintiff bringeth here into Court, the date whereof is on the same day and year aforesaid. And the said plaintiff in fact saith, that, although he hath well and faithfully kept and performed all and singular the agreements in the said article of agreement contained on his part to be kept and performed, and was, on the first day of May, in the year 1804, in the lawful and peaceable possession of the tract of land and plantation in the said articles mentioned, and was, on the day and year aforesaid, ready to give to the said defendant peaceable and quiet possession of the said tract of land and plantation, with a proper conveyance for the same, clear of all encumbrances, if the said defendant had then and there paid to the said plaintiff the sum of two thousand, four hundred dollars, and given security for the residue of the purchase money. Yet the said defendant, not regarding the agreements on his part so as aforesaid made, but contriving to defraud and deceive the said plaintiff in this behalf, did not keep and perform the agreements in the said articles of agreement contained on his part to be kept and performed, but altogether broke the same, in this, to wit, that the said defendant altogether failed to pay to the said plaintiff the sum of two thousand four hundred dollars, on the first day of May next ensuing the date of the said article of agreement, according to the form and effect thereof, and also, altogether failed to give the said plaintiff a deed of *trust on the premises, or other security for the.residue of his said payments, or any part thereof. By reason of which said breaches the said plaintiff saith he hath sustained damage to the value of ten thousand dollars; therefore he bringeth suit,” &c.
    The defendant’s first plea to this declaration was non assumpsit. His second, “that the plaintiff ought not to have or maintain his action aforesaid against him, because, he says, that the said plaintiff never had a good and sufficient title to the tract of land and plantation, in the said articles of agreement mentioned, and could not give to the said defendant a proper conveyance for the same, clear of all encumbrances, according to the true intent and meaning of the said articles; and this he is ready to verify, &c.”
    His third was, “that he has been, on his part, always ready and willing to perform the stipulations in the said articles contained on his part to be done and performed, if the said plaintiff could have complied with his part of the said articles; but that the said plaintiff could not execute and deliver to him, the said defendant, a proper conveyance for the said tract of land and plantation, clear of all encumbrances, according1 to the intent and meaning of the said articles, the said plaintiff having no sufficient title to the same; and this he is ready to verify,” &c. His fourth was, “that on the said first day of May, in the year 1804, the said plaintiff was not ready to give him, the defendant, peaceable and quiet possession of the said tract of land and plantation, with a proper conveyance for the same, clear of all encumbrances, if the said defendant had paid the said sum of two thousand four hundred dollars, and given security for the residue of the purchase money, as the said plaintiff has, in his declaration, averred; and of this he puts himself on the country.” His fifth was, “that, on the first day of May, in the year 1804, he demanded of the plaintiff peaceable and quiet possession of the said tract of land and plantation, *which the plaintiff then and there refused to deliver; and this he is ready to verify,” &c.
    The plaintiff demurred specially to the second, third, and fourth pleas, and generally to the fifth; and the defendant joined issues in law upon the said demurrers. The causes of demurrer to the second plea were, “1st. Because the said plea is no answer to the said declaration ; 2d. Because the said plea does not show and set forth that the said defendant was ready, and did offer to do and perform, on the first day of May, 1804, those things which, in and by the said articles of agreement, he was bound to do and perform on the said first day of May, 1804; 3d. Because the said defendant does not show in the said plea that he has done, or offered to do, those things which he was bound by the articles to do and perform; 4th. Because the, said plea is double, in this, that it offers to put in issue, in the same plea, the title of the plaintiff to the land, and the ability of the plaintiff to make a proper conveyance for the said land, according to the true intent and meaning of the articles of agreement; Sth. Because the said plea is informal and insufficient in law.
    The causes of demurrer to the third plea were, “1st. Because the said plea is no answer to the declaration; 2d. Because the said defendant does not show and set forth, by and in his said plea, that he was ready and did offer to do and perform on the first day of May, 1804, those things which, in and by the said articles of agreement, he was bound to do and perform, on the said first day of May, 1804, before the said plaintiff was bound to execute and deliver to him a proper conveyance for the said tract of land, clear of all encumbrances; 3d. Because the said defendant does not show in the said plea, that he has done, or offered to do, those things which he was bound by the said articles to do and perform ; 4th. Because the said plea is double in this, that it offers to put in issue in the same plea, readiness and willingness of the defendant to do and perform those things he was *bound to do, and the ability of the plaintiff to perform, on his part, those things which by the said articles he was bound to do and perform; Sth. Because the said plea is informal and insufficient in law.”
    The causes of demurrer to the fourth plea were, “1st. Because the breach alleged in the said declaration, is not answered by the said plea; 2d. Because the said defendant, by his said plea, alleges, that the said plaintiff was not ready to give the defendant peaceable and quiet possession of the said tract of land, and plantation, with a proper conveyance for the same, clear of all encumbrances, on the first day of May, in the year 1804, if he the said defendant had paid the plaintiff the said sum of two. thousand and four hundred dollars ; by which it appears, the defendant required the said plaintiff to give possession, and make conveyance before he paid the said 2,400 dollars; when, by the said • articles of agreement, the said plaintiff was not bound to give possession, and make such conveyance, as is stated in the said plea, until the said defendant made the aforesaid first payment of 2,400 dollars, and security was given for the residue of the purchase money; 3d. Because the said plea is informal, insufficient, and uncertain; and, 4th. Because it concludes to the country, and not with a verification.”
    The matters of the law arising on the demurrers, having been argued, it seemed to the Court, that the law was for the plaintiff. The pleas, on which the said demurrers were joined were therefore overruled. A jury was then impanelled to try the issue joined on the plea of nonassumpsit. Verdict and judgment in favour of the plaintiff for S00 dollars damages, and costs. The defendant appealed.
    Botts, for the appellant.
    Edmund X. Bee and Wickham, for the ap-pellce.
    
      
      See generally, monograpbic note on “Abatement, Pleas In” appended to Warren v. Saunders, 27 Gratt. 259.
    
   Saturda3r, the first of February, 1812, the Court (consisting of JUDGES DEEMING, ROANE, CABEEE, and COAETER) affirmed the judgment.

The following observations were made by

JUDGE FLEMING.

All contracts or agreements, are to be taken and construed according to the true meaning and understanding of the contracting parties.

In the latter part of the agreement before us, are the following plain words; to wit, “It is also understood by the parties aforesaid, that the deed is not to be made until the aforesaid first payment is made, and the security given for the residue as aforesaid. In witness,” &c. The plaintiff in his declaration states, that he had kept and performed the said contract, in all parts by him to be kept and performed, &c. And according to the unanimous opinion of the Court, in the case of Rawson and Others v. Johnson, (1 East, 203,) “One man,” says Lord Kenyon, “agrees to do a certain act in consideration of another man’s doing another act; the acts are to be done at the same time and place; it is sufficient for the plaintiff to aver that he was ready at the time and place to perform the agreement on his part.” In this case the defendant was, by the agreement, not only to pay before he received a deed for the land, 2,400 dollars, but also to give security for payment of the residue of the purchase money; to wit, 400 dollars more. And it is in proof, even by his own witness, that he was unable to pay more than 1800, out of 2,400 dollars, which he had stipulated to pay on the 1st day of May, 1804. I am, upon the whole, of opinion, that the declaration is sufficient; that the demurrers to the second and other pleas, are good; and that the judgment be affirmed.  