
    RUTHERFORD vs. LAWSON.
    A. covenants to convey a tract of land to B. who covenants to view the land & if he liked it to take it otherwise A. is to payhim $400. If it appear that A. had no title to the land B. is not boundto view it.
    
      
      Covenant, pleas—covenants performed,non infregit conventionem, and issues.
    
    The defendant covenanted to convey a certain tract of land to the plaintiff; the plaintiff agreed to look at the land and if he liked it, he bound himself to take it; but if he did not the defendant was to pay him four hundred dollars. It was in evidence, that the plaintiff said, he did not see the land; as he understood the defendant had no title; it was further proved that the defendant said he had no title to the land, and that he expected to pay the money.
    Wharton, for the defendant
    contended that the plaintiff was bound to shew that he had viewed the land; being a condition precedent, he could not recover without shewing performance; or that he had done all in his power.
   Per Curiam.

The defendant ought to shew a title to the land, so as to induce a necessity on the part of the plaintiff to shew performance of his part of the covenant. The defendant so far from disclosing a title to the land, acknowledged that he had none. To view the land therefore would be useless. The law never requires the performance of acts which would be useless and insensible.

Verdict for plaintiff, $400.  