
    McFeely v. Vantyle.
    Title defectively set out in a declaration, and the plea states the fact omitted, judgment after verdict ought not to be arrested.
    This case was adjourned from the Supreme Court of Hamilton county, upon a motion in arrest of judgment. The case was as follows:
    The first count in the declaration sets out a contract, in which the defendant covenanted to convey to the plaintiffs the half of a mill seat, with a part of the defendant’s plantation necessary for said seat, etc. The part to be conveyed is described by metes and bounds, and was to contain five acres at least, or as much as the parties should deem necessary for a mill. One of the lines called for is to run up the creek, through the bottom, as the parties might agree, to the line of Lawrence’s land. It is averred, that the defendant agreed to make the plaintiffs a good and sufficient deed for the premises, on the payment of three hundred dollars, and that that sum was fully paid. The breach is, that the defendant did not make a good and sufficient deed, etc.
    The second count sets out the contract substantially as the first does, but avers payment of a part of the consideration money and a tender and refusal of the residue.
    *The first plea takes issue on the payment and tender. The second plea alleges that the plaintiffs ought not to sustain their action because the defendant was ready to make and execute to the plaintiffs a good and sufficient deed, whenever they would agree with him as to the line, and pay agreeably to the form and effect of the indenture, and tenders an issue.
    A verdict was found for the plaintiffs on both, issues, and a motion for a new trial overruled.
    The defendant then filed the following reasons in arrest of judgment :
    1. “ That there is no averment that the parties agreed on the land to be conveyed, or any proof of what land was agreed on, although the covenant states the same and makes such an agreement necessary.”
    2. “No offer to submit to arbitration; no proof that plaintiffs made any offer, although it is proved to be a part of their bargain, and not contradicted.”
    3. “ That there is no such covenant as that set out in the declaration, viz: that a deed should be made unconditionally.”
    4. “No averment of a demand of a deed.”
    5. “ It is sot forth that the land should be so much as the parties might agree on — no agreement averred.”
    Gazlay, in support of the motion:
    By the covenant, defendant agrees to convey to plaintiffs, as tenants in common, a moiety of a mill seat, and such quantity of land being part of his (defendant’s) plantation, as they, the defendant and plaintiff, should deem necessary for a mill seat, mill yard, and building for a miller and his family. The words of covenant are, “containing five acres at least, or so much as parties (defendant and plaintiff), might deem necessary,” etc. The covenant contains a description of the property, by courses and distances, in which one line is left open, subject to future agreement as to quantity, as above specified. The consideration for five acres, if that quantity should be agreed on, is three hundred dollars; if more than five acres, the surplus to be paid for at forty dollars per acre. The covenants are mutual and dependent, and declared on as such.
    *The declaration sets out the terms of the covenant truly, excepting that part of same which provides for the payment of the overplus, if more than five acres should be required. As to this it is silent. The breaches assigned are general, as if the covenant barely obliged the defendant to convey on the payment of a sum of money specified. In other words, they relate to the whole covenant on the part of the defendant; that he did not convey as he had agreed to do. It is a rule of pleading, that the whole of the consideration on both sides must be set out; every matter of substance must be specified. 1 Chitty Pl. 116, cases cited, Bristow v. Wright. And in mutual and dependent covenants, plaintiff must aver, not only a performance of his, but the consideration of defendant’s covenants. Doug. 690; 1 Saund. 320, note a.
    It is not averred that the quantity of'land was agreed on, although this is a substantive part of the agreement. It is the covenant of plaintiffs as well as of the defendant, and made for their mutual interest and benefit, as tenants in common. If it be not so considered, the defendant or plaintiffs may be deprived of rights, the securing of which was the principal inducement to making the covenant.
    It is the contract of the parties, that the quantity of land shall be determined by them for their mutual convenience; and this determination as to quantity was an act to precede any and every other in completing the terms of the covenant. It is not from one, but every part of the covenant, that this position is deducible; first in the introduction, then in the courses and distance, and again in providing for the payment of the overplus. The omission to aver that parties came to such agreement as to the quantity of land to be conveyed, must be fatal. Nor is the quantity to be conveyed to be considered at all in the nature of a condition which the plaintiff is at liberty to omit, and which may be pleaded to enlarge or defeat the effect of the covenant; as where the defendant was bound to deliver fifteen hundred measures of saltpeter, provided any accident by fire or water did not prevent. 1 Term, 540; 1 Saund. 234, note; Esp. N. P. 330, on cov. title.
    That which may happen to defeat the action does *not necessarily belong to the plaintiff to state, and lying properly within the knowledge of defendant, and being for his benefit, must come from him. Hence the fixing on the quantity was to be the act of both parties, for the benefit of both, and was necessarily to precede a conveyance; it was the first • step to be taken on the contract.
    Penny v. Porter, 2 East, 2, court say, agreement laid as certain, where it is conditional, variance fatal.
    Clark v. Gray, 6 East, 570, court say, the certain act to be done must be averred.
    Here the covenant itself is set forth in the declaration, but there is no averment that the joint act of the parties which was to give it effect was ever performed. 1 Chitty Pl. 313, and cases cited. .
    The error is still more apparent in the breach, which is that defendant has not conveyed as he agreed to do. How did he agree to convey, and what did he agree to convey? Such quantity as should be agreed on. If the declaration were for five acres only, then the breach ought to have been so stated — if for a greater quantity, or a less, that should have been stated. As the declaration now stands, it would appear plaintiffs claimed five acres only; yet the breach is to| the whole covenant, and that may be more than five acres. Tredwell v. Steel, 3 Caine’s N. Y. 169; Maston v. Hobbs, 2 Mass. 437.
    Covenant for one of two quantities, breach should have been in alternative. 1 Esp. N. P. 301.
    No counsel argued on the other side.
   Opinion of the court, by

Judge Burnet :

The second, third, and fourth reasons do not require to be particularly notice. They either relate to matters not presented by the pleadings, or to such as should have been noticed at an earlier stage of the proceeding, and in a different form. The first and fifth reasons assign the omission of an avertment, that the line, and the quantity of land to be conveyed, had been agreed on by the parties. These objections resolve themselves into one; for as the course and distance of all the lines are given, except one, which is *to terminate at Lawrence’s line, it follows, that fixing the course of that line must settle the quantity of land to be conveyed ; but a reference to the record will show that the defendant has supplied the omission by his second plea, which puts that matter distinctly, though informally, in issue, and as that issue was found for the plaintiffs, the fact must have been proved to the satisfaction of the jury.

The contract is drawn with a want of technical precision, though the meaning of the parties can be sufficiently ascertained. .The pleadings are informal throughout, as well on the part of the defendant, as of the plaintiff. The title set out in the declaration appears to be a good one, but it is defectively stated. The substance of the contract is given correctly. The difficulty arises from the want of proper averments in the declaration. The defendant might have demurred, but he did not see proper to take that course. He chose rather to supply the defect, and rest on the evidence. After having traversed the payment and tender, he has informally put the agreement, as to the line, in issue; the whole of that subject was therefore before the jury. It is true that the defendant could not convey till it was ascertained what he was bound to convey; but it is equally true, that the second issue could not have been found for plaintiff, unless that matter had been ascertained. by the evidence at the trial. The defect, therefore, was supplied by the plea, or cured by the verdict. Whatever might have been the result of a demurrer, we do not feel at liberty, un der existing circumstances, to arrest the judgment. 
      
       NotE by the Bditor. — See also ii. 204; xiv. 127; xv. 138.
     