
    Oakley against Morton.
    A condition precedent must be strictly performed, to entitle a party to recover.
    Accordingly where, by a contract under seal, 0. agreed that he would keep twenty cows during the season for the dairying business, and sell the butter made from said dairy of cows to M., to be delivered at a time and place specified, at a price per pound named, and M. agreed to pay for the butter to be delivered; and 0. at the commencement of the dairy season put twenty cows on his farm, from which butter was made until the end of the season, which was about the middle of November, except that three of the cows, about the first of September, and two of them about the middle of October, ceasing to yield more than about a guart of milk each per day, and to be of much value for dairy purposes, were respectively sold at those dates; Held, that 0. could not sustain an action on the contract.
    By the contract 0. was required to keep during the season twenty milch cows, and when any of those provided ceased to yield milk, it was his duty to procure others within a reasonable time. Per Allen and Johnson, Js.
    
      Where a person by his contract engages to do an act, performance is not excused by an inevitable accident. Per Allen, J.
    Under an averment of performance of a covenant, evidence in excuse for non-performance is not admissible. Per Allen, J.
    Appeal from a judgment of the supreme court sitting in the sixth district. The action was covenant, commenced in 1847, upon a contract executed by the parties under seal and dated the 28th of February, 1846, in which it was recited that Oakley, the plaintiff, had bought a farm in Marathon, Courtland county, and was to take possession of the same the ensuing spring, and by which he agreed “ that he would keep twenty cows or more during the [then] coming season for the dairying business, and that he would sell the butter made from said dairy of cows to Morton, the defendant, well packed in good firkins, for the sum of fifteen cents per pound, to be delivered to him at the village of Chenango Forks, Chenango county, on the canal, at such time or times as Morton should request, between the first days of October and December then next; the butter to be of good prime quality.” And the defendant agreed “ that he would pay said Oakley the sum as above stated for his butter, as above stated, to be delivered as before mentioned, the payment or payments to be made by him at the time of receiving the butter.” The plaintiff in each count of his declaration averred that “ he did keep a large number of cows, to wit, twenty cows, during the season next ensuing the date of said agreement for the dairying business;"that he packed the butter made from said cows during the season, as required by the contract; that pursuant to the direction of the defendant, contained in letters received from him dated the 26th of October, and the 2d of November, 1846, he on the 15th of said November delivered the butter into the charge and custody of one Edward More at Green, Chenango county, on the canal.
    The defendant by special plea denied all the material allegations of the complaint except the execution of the contract. The cause was tried before the Hon. Ira Harris, one of the justices of the supreme court, at the Cortland circuit.
    
      On the trial it was proved that the dairying season commences in the spring when there is sufficient grass for cows, and continues till the pastures fail, which is ordinarily about the middle of November, and in 1846 was from the 10th to the 25th of November. That the plaintiff put 20 cows on his farm in the spring of 1846, and at no time had a greater number in his dairy that season. That about the middle of August he sold five of these cows to one Helsinger, to be delivered to him when they ceased to give milk, which it was then stated would be the first of September as to three of them, and the first of October as to the other two, and that the three were taken away by Helsinger not later than the 5th of September, and the two as early as the middle of October; that these cows were not worth much for dairying, and gave only about a quart of milk each per day when delivered to Helsinger; that Helsinger milked the three every other day for six or eight days after he took them, and got from them about six quarts of milk at each milking. The plaintiff did not supply the place of these five cows. • The counsel for the defendant, in due season, objected to the evidence tending to prove that the five cows sold had ceased to give milk when delivered to Helsinger, which evidence was allowed and the defendant excepted. The counsel for the defendant offered to prove that these five cows were farrow cows in the spring; this evidence was objected to and excluded, and the defendant excepted.
    The defendant resided at Stamford, Delaware county.
    The plaintiff’s counsel read in evidence a letter and postscript thereto, written by the defendant, addressed and sent to the plaintiff by mail, and postmarked Stamford, N. Y. November 3, as follows:
    “ Stamford, October 26th, 1846.
    Brother Oakley: I received yours by the hand of Mr. More, and in answer to it I am sorry to say to you that circumstances are such that I am entirely unable to leave to come out to your place. As regards the butter, I wish you to deliver it to the canal per contract. Give Mr. More the charge of it, to sell and pay over to you, and if it falls short the contract I am 
      
      ready to make up the balance as soon as informed of it. I suppose Mr. More you would consider perfectly safe in taking charge of it, and if it is as good quality as contract it will not fall much short of 15. But be it as it may I want you to let him take it and do the best he can with it, for I have got myself into a job to raise $500 for a villain Jack Reynolds on the 15th of next month or do worse by signing at the bank for him and you must conclude of course that it would be impossible for me to fetch you the as talked of, .but probably it will not make much difference with you a week or two. Mr. More said he would call on his return. If so I shall see him, if not you had better send it down by him, and if it make any great difference with you I will satisfy you. All well.
    Yours with respect. Lewis Morton.
    Nov. 2d, 1846.
    P. S. Friend Oakley: I have delayed sending this on the account that I expected Mr. More to return here on last Friday and thereby would be more fully prepared as to what course would be best. But as Mr. More did not call, I wish you would see him and let him take charge of the butter when he goes down and he may pay over the money to you, and if it falls short the contract with you and his commission, &c. I will see it all settled when you come out. If Mr. More should not be there and you should not know of any way to forward it to him at New-York, and if there should be any one that would be competent to take charge of it, or if you could sell it on the spot per contract, I wish you to do so and oblige your most sincere friend,
    Lewis Morton.”
    Edward More testified that in the fall of 1846 he resided in Marathon, and was engaged in buying butter, and that his son, John S. More, was then engaged as a commission merchant selling butter in New-York; that in October, 1846, on his way to New-York, he carried a letter from the plaintiff to defendant at Stamford; that he returned to Marathon in November, and that a day or two after his return plaintiff stated to him that he .had received a letter from defendant, who wrote that he desired him, More, to take charge of the butter, and that he, plaintiff, wished him to take it and sell it, doing as well with it as he could; to take and do with it as his own; that he told the plaintiff he was not going to New-York soon, and plaintiff asked him to whom he had better send it; witness told him to John S. More, Vesey-st. New-York ; that the plaintiff asked witness where on the canal he delivered his butter, and witness told him some at Chenango Forks and some at Green; that Lewis & Gilman at Green were safe men to freight the butter with to New-York ; that witness freighted his butter with them; that nothing was said as to whether the plaintiff’s butter should be sold for cash or on time, or as to what should be done with its proceeds.
    It was proved that the plaintiff, on the 11th of November, delivered his butter at Green, on the canal, to Lewis & Gilman, and took from them the following receipt, viz. “ Received in store for G. L. Oakley, 24 firkins of butter to ship to John S. More, 73 Vesey-st. New-York. Green, November, 1846. Lewis & Gilman;" that on his return from Green he delivered this receipt to Edward More ; that the butter was received in New-York by J. S. More, on the 3d of December; that it came to him distinct from his father’s and with a separate freight bill; that he paid the freight upon it, and sold it the day after it was received, at 161/2 cents per pound; that John S. More received no instructions as to this butter except a letter from his father, Edward More, saying it was an excellent lot of butter and wishing him to do as well with, it as he could.
    The defendant offered to prove that the butter was sold by J. S. More on credit, that the purchaser absconded and its price was lost; this was objected to and excluded and defendant excepted. The counsel for the defendant moved the court to non-suit the plaintiff; and on such motion, and again at the close of the evidence insisted among other things, that it was a condition precedent that the plaintiff should keep at least twenty cows during the season for the dairying business, and deliver the butter made from this number; and that he had not performed this covenant on his part and could not recover. The said justice denied the motion for a nonsuit, and ruled and decided as matter of law, that the sale of the five cows by the plaintiff and the keeping of only seventeen cows after the forepart of September, and only fifteen after the middle of October, was not a breach of the covenant or failure to perform on his part, inasmuch as the cows when sold had nearly ceased to yield milk, and were therefore useless for dairying purposes; and ordered a verdict in far vor of the plaintiff for the butter at the contract price. To which ruling and decision the counsel for the defendant excepted. The defendant moved for a new trial on a bill of exceptions, which was refused, and judgment rendered for plaintiff. The defendant appealed to this court.
    
      Samuel Beardsley, for the appellant.
    
      H. Ballard, for the respondent.
   W. F. Allen, J.

The right of action of the plaintiff depended upon the performance by him of a condition precedent, to wit, the keeping of at least twenty cows for the dairying business during’ the season of 1846, and delivering the butter made therefrom to the defendant at the time and place specified in the agreement. The plaintiff was bound to aver and prove a fulfilment of such condition or some excuse for the non-performance ; and if an excuse was relied upon, he should have averred his readiness to perform, and the particular circumstances which constituted such excuse. (1 Chit. Pl. Springf. ed. of 1844, 321, 326.)

A performance of the condition precedent having been voluntarily assumed'by the plaintiff, could only be dispensed with or prevented by the opposite party; and would not be excused, although it had become impossible without any default on the part of the plaintiff. (Carpenter v. Stevens, 12 Wend. 589; Moakley v. Riggs, 19 John. 69.)

Whenever a party by his own contract creates a duty or charge upon himself, he is bound to make it good, if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract. (Aleyn, 27; Pr. Ld. Ellenborough in Atkinson v. Ritcher, 10 East, 530; Com. Dig. Action upon the Case upon Assumpsit, G.; Id. Condition D. 1; 6 Petersd. Abr. 216; Shubrick v. Salmon, 3 Burr. 1637; Barker v. Hodgson, 3 M. S. 267; The Com. of Brecknock v. Pritchard, 6 T. R. 750.) The plaintiff has sought to entitle himself to recover, by averring that he did keep a large number, to wit, twenty cows for the dairying business during the season of 1846, and the court below have decided that this averment was sustained by the evidence. The proof was, that the dairying season commences in April and ends during the month of November, and when cows begin feeding on hay; that the plaintiff in the spring put twenty cows on his farm, three of which became dry about the first of September, and two others from the first to the fifteenth of October. The five were disposed of and them places were not supplied. The quantity of butter of course depended upon the number of cows from which it was made, and there was evidence offered to show that the value in market of butter made from a dairy of twenty cows was greater than that made from fifteen cows.

It will be observed that the covenant of the plaintiff does not refer to any particular cows ; but is to the effect that he will keep twenty or more ; that is, at least twenty cows for dairying business; and in this he covenants that they shall be reasonably suitable for dairy purposes, that is, milch cows, and when they ceased to give milk they were no longer within the condition of the contract. The covenant was coextensive with the season, and a failure to perform it at the latter part of the season was as much a violation of its letter and spirit as would have been a failure in the earlier part. The agreement was to keep the entire number during the entire season, and a strict performance was a condition precedent to his right to recover of the defendant, who could not be compelled to receive and pay for the butter made from any less number of cows. (Page v. Ott, 5 Denio, 406 ; Smith v. Briggs, 3 id. 73.) Had the party desired to protect himself against the contingency of the failure of any of the twenty cows which he should procure, or his inability to supply the places of any that should die or cease to be suitable for dairy purposes before the close of the season, or his inability to supply pasturage for so large a number, and still hold the defendant to the performance of his part of the contract, he should have made provision for it in the agreement.

Having undertaken to keep the complement of twenty cows during the season, it was his duty in the first instance to provide such as would probably answer the purposes of the contract, and if any by an unforeseen contingency should fail or die, to supply their places within a reasonable time. A keeping of twenty cows for three months and fifteen for the next three months, is not literally or substantially keeping the first number for the whole six months. The contract cannot be otherwise construed than if the defendant had undertaken to pay a gross sum for the butter to be made from a given number of cows, and under such a contract it would not be claimed that the dairyman could provide the whole number of cows, of such as would become dry in the midst of the season, and still compel a performance by the defendant. This case is in principle somewhat like Beatson v. Schank, (3 East, 233,) in which it was held that the party who took upon himself to keep on his vessel a certain number of hands, was bound to provide against the contingency of any of them dying, as by taking an extra number on board. (See also Inman v. Western Fire Ins. Co., 12 Wend. 452.)

The plaintiff in this case, by the exercise of proper care in making his purchases in the spring, could have guarded against the contingency which eventually deprived the defendant of the butter to which he was entitled; and if he preferred such cows as would give milk a part of the season and then make beef in the fall, and the consequence has been that he has been unable to perform his contract with the defendant, he has sustained no injury, and no action will lie against the defendant.

In Pike v. Butler, (4 Comst. 360,) which was a suit in equity, the equities of the plaintiff were much stronger than in this case, and yet the court held that he was not entitled to any relief, and dismissed his bill with costs.

The plaintiff did not prove a substantial performance of this part of the contract, and the performance was not dispensed with, or prevented by the defendant. The evidence did not tend to establish an excuse for non-performance, even if under the pleadings, an excuse could have been shown. Upon the merits, therefore, and upon all the evidence the motion for a nonsuit should have been granted. But under an averment of performance as in this case, evidence in excuse of non-performance was not admissible and should have been excluded. (Crandall v. Clark, 7 Barb. 169 ; Baldwin v. Munn, 2 Wend. 399 ; Phillips v. Rose, 8 John. 392 ; Freeman v. Adams, 9 id. 115; Fleming v. Gilbert, 3 id. 528; Little v. Holland, 3 T. R. 590 ; 1 Ch. Pl. 321, 326.)

This point is fatal to the plaintiff, and renders it unnecessary to examine the other questions made on the trial.

The judgment of the supreme court should be reversed, and a new trial ordered, costs to abide the event.

Johnson, J.

If the decision of the justice was correct it will follow, that if half of the twenty cows had died in the middle of the season, the defendant would still have been bound to receive and pay for the butter of the remaining ten. I think the decision is in direct conflict with the terms of the contract of the parties. The plaintiff’s undertaking was that he would keep twenty cows or more during the season; not that he would stock his farm with twenty cows at the commencement of the season. The contract related to the making of butter from the milk of the cows so kept, and the covenants are to be interpreted with reference to the purpose for which the cows were to be kept. I do not think that the plaintiff could, have satisfied the requirements of the "contract by putting on twenty cows, ten of which were dry, and for the same reason I do not think that the risk of the drying up of the cows during the season was upon the defendant. This latter question is, however, hardly involved in the case, for the plaintiff parted with the cows before they were actually dried up. It is true that the milk which was afterwards procured from them was of small amount, but upon a question of the performance of a condition precedent small matters are of consequence. The performance must be exact, not cy pres. Besides, if the law says that six-quarts of milk every other day for six or eight days, are not enough to be regarded upon such a question, I am considerably at a loss to know, where in the law is to be found the precise measure of milk which a cow may yield, and yet under such a contract be disposed of without a violation of it. Another consideration seems to me to strengthen this view of the contract • the plaintiff was not bound to keep the same cows during the whole season, on the contrary, he was at liberty to change them at his pleasure, and according to his own views of his own interest. All the defendant stipulates for, is the butter from the milk of twenty cows during the season. How if the risk of the drying up of the cows is on the defendant, it would attach from time to time to each cow the plaintiff might choose to substitute for those with which he originally stocked his farm. That such a consequence is involved in the construction put upon the contract at the trial, seems to me to show it to be an unreasonable construction, and one which ought not to be sustained. The obligation of the plaintiff under this contract was, as I conceive, to keep at least twenty cows yielding milk during the dairying season, and as he has failed to comply with this obligation, he should, in my opinion, have been nonsuited.

Gabdiner, Ch. J., Ruggles, Parker and Edwards, Js. concurred.

Denio, J.

was in favor of affirming the judgment of the supreme court, on the ground that the defendant, by his letter of the 26th of October, written near the close of the dairy season, gave the plaintiff explicit and -peremptory directions what to do with the butter made under the contract, and thereby waived performance of the condition precedent. That in the absence of proof to the contrary, it should be presumed he was informed of the true state of facts when he gave these directions, especially as in his letter he acknowledged the receipt of one from the plaintiff on the subject of the butter, which was not given in evidence.

Judgment reversed and a new trial ordered.  