
    *Paine v. Brown.
    
      Independent covenants.
    
    Where a contract for the sale of land expressly provides, that a partial payment shall be made, prior to the execution of the deed, the vendor may sue for the .amount thereof, without tendering a conveyance.
    Appeal from the general term of the Supreme Court, where judgment had been entered upon a verdict in favor of the plaintiff.
    This was an action by Nicholas E. Paine, as assignee of Calvin T. Chamberlain, against Thomas Brown, to recover the sum of $2000, being the amount of the first instalment due upon a contract between Chamberlain and the defendant for the sale of one-fifth of the Indiana Central Canal, in the following terms:
    “ Memorandum of an agreement. C. T. Chamberlain agrees to sell, and convey, by deed of release, to Thomas Brown, one-fifth part of the Central canal, in Indiana, north of Morgan county, for the sum of ten thousand dollars, and the said Brown agrees to purchase the same, and pay that sum therefor: two thousand dollars are to be paid in July next, and the balance in one and two years, with interest from the first of May next. This contract is to be put in form, in course of this month, at Rochester, N. Y. If Joseph Robinson does not take a fifth of said canal, in pursuance of his verbal agreement, said Brown is to have one-quarter of said canal, at same rate, to wit, for $12,500, and payment as above.
    O. T. Chamberlain, [l. s.]
    Thomas Brown, [l. s.]
    Indianapolis, March 12, 1859.”
    *The first payment of $2000 called for by this contract not having been made, the present action was brought for the recovery thereof, with interest. When the plaintiff rested his case, the defendant’s counsel moved for a nonsuit, on the following grounds:
    1. The contract in suit appears, upon its face, to be incomplete, and does not purport to be a contract of purchase and sale between the parties, but an agreement for a contract.
    2. The plaintiff has not shown any performance or offer to perform, within the time limited by the agreement, or at any other time.
    3. The deed tendered or offered, in July, is not in accordance with the contract. It varies from the contract in the description of the property, and in the estate which it purports to convey. The motion, however, was denied, and an exception taken.
    The learned judge charged the jury (infer alia), that the contract of the 12th March 1859, was complete in itself, and that it was not necessary for the plaintiff to tender or offer to enter into any further contract, or tender any conveyance, within the time specified in the contract, for putting the same in form at Rochester, New York, and that it was sufficient, if he tendered a conveyance in the month of July following, when he required payment of the $2000 to be paid in that month. To this part of the charge, the defendant’s counsel excepted.
    The judge also charged the jury, that, inasmuch as the defendant did not, when the deed was offered to him in' July, insist upon a more complete contract, he must be deemed to have waived it, and it must be considered, that he was satisfied with the contract as it was. To this part of. the charge, another exception was taken.
    The judge also charged the jury, that the tender in July, as proved in the case, was a sufficient tender; which was the subject of another exception.
    The jury rendered a verdict in favor of the plaintiff, and the exceptions were directed to be heard, in the first instance, at general term, where a motion for a new trial was denied, and judgment entered upon the verdict; whereupon, the defendant appealed to this court.
    
      Strong, for the appellant.
    
      Munger, for the respondent.
   *Davies, C. J.

(after stating the facts.)—In the view we take of this contract, no obligation was imposed upon the plaintiff, or his assignee, to tender any conveyance, as a condition precedent to his right to demand the sum of $2000, to be paid, by its terms, in July 1859. And it was, in this aspect of the case, wholly immaterial, whether the tender of a conveyance, made in July 1859, was or was not sufficient. If no tender of any conveyance was called for by this contract, before the sum of $2000 therein mentioned was demandable and payable, it follows, that no question of the sufficiency of the tender made could legitimately arise.

We also think the judge did not err, in telling the jury that it was not necessary for the plaintiff, before he could properly demand the payment of the said sum of $2000, to tender or offer to enter into any further contract with the defendant, in respect to the subject-matter of the contract. The plaintiff, by his acts, affirmed the contract, and its sufficiency to compel him to sell and convey the subject-matter therein mentioned. If, by the terms of the contract, it, that is, “ this contract,” was to be put in form, in the course of the month of March 1859, it did not appear, that either party desired the contract to be put into any other or different form, either within the time specified therein, or at any other time. Neither did the defendant assume any such ground, when called upon, in July, to fulfil said contract on his part; on the contrary, he utterly denied any obligation resting on him, arising from said contract. He told the plaintiff, “ that he did not want any deed, nor anything to do with the property; he said, they had not lived up to their contract, and he considered the whole matter a swindle.” These acts and declarations of the defendant conclusively demonstrate, that it would have been an idle ceremony on the part of the plaintiffs, either to have tendered a conveyance to the defendant, or to have tendered or offered to enter into any further contract. It is very manifest, that the defendant did not desire a more complete contract, and that, so far as its terms and provisions and form were concerned, he was perfectly satisfied with it.

Even if such a tender was requisite, '"These acts and declarations of the defendant show, that any such tender would not have been accepted, and the law does not impose upon a party the duty of performing an idle ceremony. (Slingerland v. Morse, 8 Johns. 474; Dyckman v. City of New York, 7 Barb. 498.)

But, as already observed, no tender of any conveyveyance was required by the terms of this contract, as a condition precedent to demand the sum of $2000, which, by its express terms, was payable absolutely in the month of July 1859. Where, by the terms of a contract, it was provided, that all payments should be made previously to the execution of a deed (and this contract in substance provides the same thing), it was held by the supreme court, that it was not necessary for the plaintiff to convey, or offer to convey, before bringing suit, even for the last instalment. (Adams v. Wadhams, 40 Barb. 225.)

By the terms of this contract, Chamberlain, the assignor of the plaintiff, bound himself to sell and convey, by deed of release, the property described, to the defendant, for the sum of $10,000, and the defendant agreed to purchase the' same and pay that price therefor. No time was fixed by the contract for the conveyance of the property, but the defendant was to pay $2000 of the purchase money, in the month of July 1859, and the remainder in one and two years, with interest from the 1st May 1859.

This case is not unlike that of Pordage v. Cole (1 Saund. 319), and is clearly within the doctrine there settled. That was an action of debt, on specialty, for 774Z. 15s.; the agreement was in these words: 11th May 1668. It is agreed between Doctor John Pordage and Bassett Cole, Esquire, that the said Bassett Cole shall give unto the said Doctor 775i. for all his lands, with Ashmole House thereunto belonging, with the brewing vessels as they are now remaining in the said house, and with the malt-mill and the wheelbarrow. In witness whereof, we' do put our hands and seals, mutually. Given as earnest in performance of this, 5s., the money to be paid before Midsummer 1668; all other movables, with the corn upon the ground, excepted.” *^iere was a demurrer, and it was contended on the part of the defendant, that if, by one single deed, two things are to be performed, namely, one by the plaintiff and the other by the defendant, if there be no mutual remedy, the plaintiff ought to aver performance on his part, and in this case, it was a condition precedent which ought to be performed, before the action brought. But it was adjudged by the court, that the action was well brought, without an averment of the conveyance of the land; because it shall be intended, that both parties have sealed the specialty, and if the plaintiff has not conveyed the land to the defendant, he has also an action of covenant against the plaintiff, upon the agreement contained in the deed, which amounts to a covenant on the part of the plaintiff to convey the land, and each party has a mutual remedy against the other.

Sergeant 'Williams, in his learned note to this case, says: “It is to be observed, that covenants are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good'sense of the case, and that, in order to discover that intention, and learn, with some degree of certainty, when performance is necessary to be averred in the declaration, and when not, it may not be improper to lay down a few rules. First, if a day be appointed for payment of money, or part of it, or for doing any other acts, and the day is to happen, or may happen, before the thing which is the consideration of the money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act, before performance, for it appears that the party relied upon his remedy, and did not- intend to make the performance a condition precedent; and so it is, where no time is fixed for the performance of that which is the consideration of the money or other act.” And he adds: “ This seems to be the. ground of the judgment in this case (Pordage v. Cole), the money being appointed to be paid on a fixed day, which might happen before the lands were or could be conveyed. But, second, when a day is appointed for the payment of 'money, &c., and the day is to happen, after the thing wki°h *s consideration *of the money, &c., is to be performed, no action can be maintained for the money, &c., before performance. Third, when a covenant goes only to a part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant, without averring performance in the declaration. Fourth, where two acts are to be done, at the same time, as where A. covenants to convey ah estate to B. on such a day, and in consideration thereof, B. covenants to pay A. a sum of money, on the same day, neither can maintain an action, without showing performance of or an offer to perform his part, though it is not certain which of them is obliged to do the first act.” To the same effect, see Campbell v. Jones (6 Tenn. 570). The principles here enunciated have receiyed the approval of the courts of this state in the following cases: Robb v. Montgomery (20 Johns. 15); Tompkins v. Elliott (5 Wend. 496); Harrington v. Higgins (17 Id. 376); Evans v. Harris (19 Barb. 416); Grant v. Johnson (5 N. Y. 247).

In Robb v. Montgomery (supra), the supreme court said : “Where the payments are to precede the conveyance, it is no excuse for non-payment, that there is not a present existing capacity to convey a good title, unless the one whose duty it is to pay, offers to do so, on receiving a good title, and then it must be made to him, or the contract will be rescinded. Here, the defendant never offered to pay, and never demanded a conveyance ; and, therefore, it furnishes no bar to the suit, that at a certain period the plaintiff had not the title.” In Grant v. Johnson (supra), the question was, whether the plaintiff could sustain an action for the second instalment of the purchase-money secured by the agreement, without averring and proving the delivery, or an offer to deliver, a deed of the premises. This court said: “ The parties have declared, that certain payments were to be made, and certain acts performed by them, respectively, at the times specified in the agreement. They must be held to have intended the performance of these acts, when and, of course, in the order *of time indicated in their covenants.”

So, in the case at bar, the covenants to pay the purchase-money in the instalments mentioned, were all independent of, and intended by the parties to precede, the actual conveyance of the property described. The covenant to pay the $2000, in July 1859, was independent of, and to precede, any act to be done or performed by the assignor of the plaintiff. Upon the defendant’s breach, an action accrued to the assignor of the plaintiff, and no sufficient defence was interposed. These views conclusively show, that the exceptions to the charge of the judge to the jury were properly overruled, and that the plaintiff was entitled to judgment upon the verdict. The judgment appealed from should be affirmed.

Judgment affirmed.  