
    John Newcomb versus James Brackett.
    
      A. , for a valuable consideration, promises to convey certain land to B., as soon as B. should pay to A. a certain sum of money; A. conveys the land to a stranger; and it was held that B. was presently entitled to his action, without payment or tender of the money.
    The declaration was in case, “ for that the said B. at, &c. on the 8th of August, 1808, by his memorandum in writing of that date, by him subscribed, acknowledged that he had then and there received of the plaintiff a bill of sale of one half of the sloop Union and her apparel, the consideration whereof the said B. then and there acknowledged in writing under his hand to be 200 dollars; which sum the said B. then and there, in said memorandum by him subscribed, promised the plaintiff to account to him for in a transfer of a deed which the said B. then held against one Jackson Field’s estate, as soon as the plaintiff should pay said B. the residue of a debt to him, which should not exceed 100 dollars. And the plaintiff avers that the transfer of a deed against said J. Field’s estate, mentioned in said memorandum, was to be a transfer, assignment and conveyance of the land, described in a certain deed made to said B. by one J. Field, which land the said B. then and there promised to convey to the plaintiff. And the plaintiff further avers that the [ * 162 ] said B. on the * 19th of April, 1810, by his deed of release and quitclaim, by him duly executed, did release and quitclaim to one J. N. Arnold all the right, title and interest, which he the said B. then had to a certain real estate described in said deed, which said real estate was the same of which the said B. then held a deed from said J. Field, and of which the said B. was then in possession, and which he had in and by said memorandum engaged to transfer to the plaintiff; and upon which transfer he had engaged to account for said 200 dollars. And the plaintiff further avers, that the said B. had not before said 19th of April accounted to the plaintiff for said 200 dollars, in a transfer of a deed held by him, the said B., against said J. Field’s estate. And the plaintiff fur ther says, that the said B., by his deed aforesaid, made to said J. N. Arnold, has broken his promise aforesaid, and become unable to perform the same, according to the terms thereof. To the damage, &c.”
    The defendant demurred to this declaration, and assigned the following causes of demurrer.
    1. That the plaintiff hath not alleged or shown, that he has ever paid or tendered to the defendant the residue of said.debt, mentioned in the declaration.
    2. That he has not alleged or shown, that he has paid or offered to pay to the defendant the sum of 100 dollars, mentioned in the declaration.
    3.. That he has not alleged or shown, that he ever requested the defendant to transfer to him the deed which the defendant held against J. Field’s- estate, or to assign and transfer to him the land mentioned in the declaration.
    The demurrer was joined by the plaintiff.
    
      Loud, for the defendant.
    The undertaking of the defendant, as it is stated in the declaration, should receive the same construction, as it would have, if the sale of the sloop by the plaintiff had been executory, and had been written thus: “ In consideration that J Newcomb has agreed to execute a bill of sale of one half of the sloop, &,c., the value of which is 200 dollars, I promise to account *for the same in the transfer of a deed, &c. [ * 163 ] as soon as,” &c. It was a part of the same transaction, executed at the same time, and given in consideration of the defendant’s promise to convey the land. The plaintiff was to convey the sloop, and to pay 100 dollars; and when he had done both, the defendant was to give a deed of the land spoken of.
    If the plaintiff can recover in the present action, he must do so, either upon the ground of the contract’s being rescinded, or because he has performed aU the precedent conditions on his part, to entitle himself to damages; and we contend that he cannot recover on either ground. Not on that of the contract’s being rescinded ; because he declares only upon the special agreement, and admits it to be open. He claims, not the value of .the sloop, as so much money paid, but general damages; the rule of which would probably be the value of the land, at the time it was conveyed to Arnold, or at the time of bringing his action . Assumpsit for money had and received is the usual action to recover money paid by the plaintiff, -in pursuance of a contract which has failed; as where either of the parties had a right to consider the contract rescinded by the terms of it, or where the plaintiff is prevented by the defendant from performing some antecedent condition. No case is recollected, in which an action upon the special agreement has been brought, to recover back money so paid, or the value of any goods sold and delivered, unless upon the notion of fraud practised by the purchaser .
    Another reason, why the contract cannot be considered as rescinded, is that the parties cannot be put in statu quo. It wras a barter transaction. The sloop sold to the defendant was not money paid. The plaintiff then has performed a part of the contract .
    If the contract is to be considered as still open, the action can be no better supported. The payment of the 100 dollars is a condition precedent on the part of the plaintiff, and that too upon [ * 164 ] W'hich the defendant assumed * to convey the land. If the defendant had not subsequently conveyed the same land to Arnold, there could be no pretence for an action by the plaintiff, before payment or tender of the 100 dollars. It is difficult to perceive why that conveyance should alter the case. The misfeasance of the defendant cannot excuse the plaintiff from performing the whole of a condition precedent, of w'hich he has performed a part; and it certainly ought not to have that effect here, where the plaintiff has lain by until the defendant has lost any other remedy for the recovery of the money, by lapse of time.
    This is not like that class of cases, which contain mutual covenants, and in which it is held that the plaintiff, after having performed the gist of the consideration on his part, may maintain an action against the defendant for non-performance on his part; upon the ground that the latter has his remedy against the plaintiff, for neglect of any collateral stipulations . This is the conditional promise of the defendant alone.
    If the plaintiff, on the contrary, has sustained any loss, it has always been and still is in his power, by paying the’100 dollars, to compel the defendant to execute a good conveyance of the land, or to answer in damages for its value.
    
      Metcalf, for the plaintiff.
    
      
      
        1 D. & E. 133, Towers vs. Barrett
      
    
    
      
      
        Comyns on Contracts, 84.
    
    
      
       7 D. & E. 181, Giles vs. Edwards. —5 East. 449, Hunt vs. Silk.
      
    
    
      
      
         1 Saund. 320, Pordage vs. Cole. —Strange, 569, Lock vs. Wright. -2 Selw N P. 440.
    
   Parker, C. J.

The contract set forth in the declaration is substantially, that in consideration of the value of a sloop sold by the plaintiff to the defendant, estimated at 200 dollars, the defendant would, upon payment of 100 dollars by the plaintiff, which was due to the defendant from one Field, and to secure which he had taken a deed of Field’s estate, convey said estate to the plaintiff; and the breach of the contract alleged is, that the defendant had disabled himself from performing the contract, by conveying the same estate to another person.

The declaration is demurred to, and the objection to it is, that the plaintiff had neither paid, nor offered to pay, * the [ * 165 ' debt of Field to the defendant; and therefore has no title to the action.

No time is fixed in the contract, within which the money was to be paid, or the estate conveyed to the plaintiff. The plaintiff then had a reasonable time, by virtue of the contract, to perform his part of it; and the defendant might have hastened him, by tendering the deed, and demanding the money which the plaintiff had assumed to pay .

It is implied in the contract, on the part of the defendant, that he would do nothing by which he should become unable to perform it; and by making a deed to another person, he has disabled himself, and so virtually broken his contract. It being impossible for him, after having thus done, to account for the 200 dollars in the land, as he undertook, there is a breach of his contract, for which proper damages may be recovered. The law will not, in such circumstances, require a payment or tender by the plaintiff; for this would be to hazard an additional loss, without any possible advantage.

This opinion is supported by several decided cases, which are collected by Mr. Metcalf, in a note to the case of Raynay vs. Alexander, in his valuable edition of Yelverton’s Reports, page 76. The case in the text is—The plaintiff declared upon a promise to deliver, on a particular day, fifteen out of seventeen tads of wool, to be chosen by the plaintiff, upon payment of £6, and averred that he was ready to pay the £6 on the day ; yet the defendant had not delivered the wool. Verdict for plaintiff—and judgment arrested, because not averred that the plaintiff had chosen the fifteen tads out of the seventeen ; which was a condition precedent. But Popham, C. J., said, if the defendant had sold one of the tads of wool before the election made by the plaintiff, that had destroyed the election and made the promise absolute, and had been a breach of it. The same law, if the defendant would not have permitted the plaintiff to see the wool, that he might make election ; for that had excused the act to be done by the plaintiff, and had been a default by the defendant.

*The law is well summed up by Mr. Metcalf in his [ * 166 ] note: “ When the consideration of the contract is executory, or its performance depends upon some act to be done or forborne by the plaintiff, or on some other event, the plaintiff must aver performance of such precedent condition, or show some excuse for the non-performance.”

The declaration, in the case at bar, shows that the defendant had conveyed to a stranger the land, which he promised to convey to the plaintiff. This excuses the plaintiff from tendering the money, and entitles him to damages from the breach of the contract .

Declaration adjudged good 
      
      
        [Eames vs. Savage, 14 Mass. 425.—Ed.]
     
      
       [Webster vs. Coffin, 14 Mass. 196. —Clark vs. Moody & Al. 17 Mass. 149 Cooper vs. Mowry & Al. ante, 5. —Ed.]
     