
    Alexander Campbell and others v. Michael D. Gittings.
    Where an article contains a covenant by one party to execute and deliver a warranty deed, and by the other to execute and deliver, when the deed is tendered, a bond and mortgage for the purchase money, though the party first named neglect or refuse to deliver the deed, the other is not entitled to sue, after having neglected, at the proper time, to offer or tender the bond and mortgage ; and a declaration on the covenant to make a deed, containing an averment that the plaintiff offered to execute a bond and mortgage, without averring a tender, or what is equivalent thereto, is bad on demurrer.
    This is a writ of error to the Court of Common Pleas of Muskingum county.
    The plaintiffs brought an action of covenant in the court below, on an article of agreement between the parties under seal. The article was dated March 2d, 1844, and was executed by said Gittings of the one part, and by said Campbell, William Ricketts, A. Baker, and one Simon Shurtliff, since deceased, of the other part. By this article, Gittings sold to Campbell, Ricketts, Baker, and Shurtliff, 1250 acres of land, particularly described therein, and situate in said Muskingum county.,
    The only parts of the article required for the purposes of this case, to be set out, are the following: “ And the said Gittings agrees to make and deliver a general warranty deed, m fee simple for said land, on or before the first day of September next to said Campbell, Shurtliff, Baker, and Ricketts, or to such other persons or trustees as they may designate, in trust for them or their associates, now and hereafter to be associated in a society called the Columbian Phalanx. And the said Campbell, Shurtliff, Baker, and Ricketts agree to pay for said land at the rate of sixteen dollars per acre, and that they, or the said trustees, when the said deed is tendered to them or either of them, will execute and deliver to said Gittings their joint and several bond for the full amount of said purchase money, payable in eight years after the first day of April next, with interest payable annually after said first day of April, and also make and deliver to said Gittings a mortgage on said lands to secure the payment of said bond, and the interest on the same.”
    The declaration, after setting out the various covenants in the article, and averring breaches, contains the following averment : that the plaintiffs “ offered to the defendant, to execute and deliver to him, said defendant, their joint and several bond,” setting forth the terms, etc., in the language of the covenant, “ and also to make and deliver to him, the said defendant, a mortgage on said land, to insure the payment of said bond ; and that they then and there requested the defendant to make and deliver a general warranty deed in fee simple for said land; that the defendant did not nor would make and deliver the deed, but neglected and refused so to do.”
    The defendant craves oyer of the article of agreement, which is set out, and demurs to the several breaches assigned, claiming judgment because of their insufficiency. The common pleas gave judgment for the defendants on the demurrer.
    
      James R. Stanbery, for plaintiff in error.
    The ground for demurrer, as I understand it, is, that the defendant omits to aver, that the plaintiffs tendered to the defendant, the notes and mortgage for the purchase money of the land, at the time they requested of him a tender and delivery of the deed ; and this is designed to apply to all the breaches alleged in the declaration.
    In support of this demurrer, it is maintained, that the covenants of the agreement declared on, are dependent — that the acts to be performed by the plaintiffs and defendant, are concurrent acts, and neither party is éntitled to an action against the other, without the averment of performance or of a tender of performance on his part. That is, that the plaintiffs, in this declaration, should have distinctly stated, that they had prepared and executed the notes and mortgage for the purchase money agreed to be paid, and had tendered and offered the same, so prepared, to the defendant.
    But I contend that, according to the strict rules of pleading, as applicable to the covenants of this agreement, the averments of the declaration, are equivalent to an averment of performance on the part of the plaintiffs. The agreement provides, that upon or before the first day of September, 1844, the defendant will make a deed for the land sold to the plaintiffs, and the plaintiffs, on their part, agree that, upon the tender of the deed on that day, they will make and execute their bonds for the purchase money, with a mortgage on the land to be conveyed by the defendant, to secure them. The declaration avers, that the plaintiffs were, and always had been, ready and willing to execute the bonds and mortgage, upon the tender of a deed by the defendant; that, upon the day specified for the delivery of the deed, they demanded its delivery by the plaintiff, and offered to execute their bonds and mortgage ; but the defendant neglected and refused to comply on his part.
    The plaintiffs have done all it was in their power to do. The contract is, that the defendant shall, on a given day, make and tender a conveyance; and the plaintiffs, upon such a tender, are to secure the purchase money, by their bonds, together with a mortgage re-conveying the land to the defendant. Both acts are to be done at the same time, but they are not, strictly speaking, concurrent acts, nor are the covenants mutual and dependent; for, by the very language of the contract, there is an act to be done by the defendant, before the plaintiffs can make any movement at performance on .their part. A deed is to be executed by the defendant and tendered, and then, and not till then, are the plaintiffs to re-convey by way of mortgage. In the very nature of things, it was impossible that the plaintiffs could make or tender a mortgage of lands to which the defendant had title. They could not mortgage until the defendant had first conveyed. The prior performance by de fendant was essential to the performance by the plaintiffs; and it certainly could not be required, that the plaintiffs should tender performance of an act they could not perform, until the defendant had first executed the covenant on his part.
    But I further maintain that even if the covenants of the parties were different, and no mortgage was provided for, but that the defendant on his part was to make a deed, and the plaintiffs on the same day to give bonds for the purchase money, that, in that state of case, the averment of readiness and offer to performby the plaintiffs, coupled with a demand and refusal by the defendant, are sufficient, and said averments would excuse or be equivalent to an actual tender of performance. A tender, in the legal acceptation of that term, where, upon request, the party to whom it is made, gives notice that it is useless, and refuses to perform, would he a ceremony perfectly idle. Even in the case where money is to be paid, upon the performance of an act or the delivery of a specific article by the defendant, a readiness and present ability to pay, an offer of payment, and a refusal to receive by the defendant, dispenses with an actual production or counting of the money. Indeed it has been held, that the mere averment of readiness and willingness to pay for a specific article, agreed to be delivered, and a refusal to deliver, without averring an actual tender of price, is sufficient : vide Rawson and others v. Johnson, 1 East’s Rep. 203. This is a leading case on this subject. It is stated in the report of it, that it was an action on the case for breach of a contract, whereby the defendant undertook to sell and deliver to the plaintiff a certain quantity of malt at a given price. The declaration, or that count of it upon an objection to which the motion to arrest the judgment was founded, after stating the contract, averred, “ that although the plaintiffs after-wards, etc., requested the defendant to deliver the 100 qrs. of malt, and were then and there ready and willing to pay the said defendant for the same, and although the plaintiffs were then and there ready and willing, and offered to accept and receive the said malt, yet the defendant did not deliver the same, but refused, etc.”
    Lord Kenyon, in deciding the case, says: “ The defendant undertook to deliver the malt when he should be requested, and the plaintiffs plead, they made the request of him, and were ready and willing to have accepted and paid for it, but that he did not deliver it when requested, or. at any other-time, but refused to do so. To be sure, under this averment,, the plaintiffs must have proved, that they were prepared to tender and pay the money, if the defendant had been ready to have received it, and to have delivered the goods; but it cannot be necessary that in order to entitle them to bring their action, they should have gone through the useless ceremony of laying down the money, in order to take it up again. It would' be repugnant to common sense to require it.” The language of Le Blanc, J.,» in the same case, is equally explicit. He says, “ according to the cases which have been determined - on this question, neither of the parties was bound to do the first’act, or perform his part of the agreement be-, fore the other. If so, then neither can be bound to state that in pleading which is equivalent to performance. Now a tender and refusal has always been deemed equivalent to performance; therefore, as performance in this case was not necessary, neither was it necessary to aver that which was equivalent to it. But all that it is required of the plaintiffs tc show is, that they did every thing which they were bound in fact to do. Then if they show they were ready to pay the price, provided the defendant was ready to deliver the malt, that was all that was necessary for them to do, and consequently their pleading a readiness to perform, is equivalent to every thing they were bound to perform, where the defendant refused to perform his part.”
    See also the subsequent case of Waterhouse v. Skinner, 2 Bos. & Pul. 447, where the same doctrine is fully sustained, and which settles the.rule of law, “ that where two concurrent acts are to be done, the party who sues the other for nonperformance must aver, that he has performed, or was ready to perform, his part of the contract.”
    See also the note of Sergt. Williams to the case of Pordage v. Coke, 1 Saund. 320 (a), where all the authorities are fully collected. If, then, in the cases where money is to be paid, as the consideration of performance by the defendant, the mere proof of readiness to pay, and refusal to perform by the defendant, be sufficient to maintain the action, for a much stronger reason are the same averments (with the additional one of an “ offer ” to perform by the plaintiffs) sufficient in this case. But for authority upon the very point reserved, I would further cite the case of West v. Emmons, 5 J. R. 179, where, upon an almost precisely similar state of facts, the court rule, that the averment of readiness to execute the bond and mortgage are sufficient.
    
      C. C. Convers, for defendant.
    The declaration is defective. It avers that the plaintiffs only offered to execute and deliver to the defendant, the bond for the purchase money, and to make and execute the mortgage to secure its payment.
    An averment of a tender of the bond and mortgage — the securities themselves — is essential. These securities are, by the contract., substituted for the purchase money. The averment in the declaration in this case is as fatally defective as if, in case where the payment is required to be made in money, it were averred that the vendee offered to procure and pay the money.
    It is, in all cases, an essential element of a tender, that the party not only “ offer,” but that the offer be, at the same time, coupled with a, present ability, instantly, to pay. The party to whom the tender is to be made, is not bound to wait, while the other goes to provide the coin, or bank notes, or individual, notes, in whichsoever the payment is to be made. The party offering, must, at the time of his offer, be prepared with the medium of payment in hand — whether it be money, or notes, or other securities — so as to be able, at once, to pay it over to the other, if he be ready to accept the tender.
    Where, by the terms of the contract, as in the present case, the purchase money — or notes, or other securities in lieu thereof — is to be paid, and the conveyance to be made at the same time, neither party can maintain an action against the other, without showing such other in default. This, the party suing — if he have not already fully performed the contract on his part — can only do by showing that he has, himself, at the proper time, made prompt and full tender to the other party of all that, by the terms of the contract, such other was entitled to require.
    In the present case, before the defendant could be required to perform, the plaintiffs, when they demanded the deed, were bound to present, for his acceptance, the bond and mortgage — in esse — prepared and ready in hand, so that the instant he parted with the title, by delivery of his deed with the one hand, he might — eo instanti — with the other, lay hold of the securities. Neither party was bound to trust the other. Neither could be required to part with any right, unless, at the same time, he received what the other had stipulated to give in return for such right. Neither one, after being called upon to perform, is bound to wait for the other, while he goes about to provide himself with the means of full and complete performance. The party, who w-ould charge the other with default, must himself have gone so far in the way of performance, on his own part, that nothing remains to be done, so far as he is concerned, but the simple exchange of the money, or securities for the deed of conveyance. When he summons the other to strict performance — and in case of his failure to respond, subjects him to damages — he must have previously placed himself in such condition, that if the other had responded to his demand, he will not then be obliged to interrupt the instantaneous fulfillment, and ask for time to make himself ready to perform, by providing his money or securities.
    The plaintiffs should have done towards performance, before calling upon the defendant, all that they could do alone — every thing that did not require the co-operation of the defendant— and when having gone thus far, but not before, if the defendant refused, a right of action against him would have accrued.
    The plaintiffs, however, stopped far short of this. They had no bond or mortgage with them. Neither was yet in existence. They might have had both in hand, ready for delivery. But they chose, without any offer of the securities which they could themselves have prepared, to call upon the defendant for performance, when he could not have secured himself if, yielding to such call, he had then delivered the deed.
    The plaintiffs, therfore, having failed to aver, in their declaration, a proper tender of the bond and mortgage, the judgment in the common pleas — sustaining the demurrer — ought to be affirmed.
    The authorities fully sustain the judgment of that court: McCoy’s Adm’r v. Bixby, 6 Ohio Rep. 310 ; Dustan v. Newcomer, 8 Ohio Rep. 50 ; Sherdine v. Gaul, 2 Dallas’ Rep. 190; Breed v. Hurd, 6 Pickering Rep. 356 ; Otis v. Barton, 10 New Hamp. Rep. 433 ; Glasscott v. Day, 5 Esp. Rep. 48 ; Huxam v. Smith, 2 Camp. Rep. 21; Thomas v. Evans, 10 East’s Rep. 101; Bakeman v. Porter, 15 Wend. Rep. 637.
    I ask, therefore, an affirmance of the judgment of the court below.
   Avery, J.

On examining the article of agreement, we have deemed it important to remark upon such parts of it only, as are found in the statement of the case; and the averments of the declaration relating to these portions of the article, are all that require notice in deciding the present cause. Here are covenants to be performed by each of the parties. The defendant agrees to make and deliver to the plaintiffs, a deed for the land, on or before the first of September. The plaintiffs agree to execute and deliver to the defendant, their bond for the purchase money, and also, their mortgage to secure the payment of the bond. It is claimed, in behalf of the plaintiffs, that an offer by them to make the bond and mortgage, must be considered sufficient in the case, and that it is unreasonable and even absurd to require of a party to execute a mortgage upon land before he has a title to it.

But the plaintiffs have agreed to execute it, and they have not provided, by the express terms of the contract, that the deed to them shall be made first. The plaintiffs could have put themselves in readiness to perform, as well before the deed was offered, as after; and to give a mortgage upon this land, as well as upon other land then actually owned by them. They had access to the article, and could describe the land in a mortgage, as well as set it out in a declaration. The mortgage, also, so executed, would be valid, if the defendant should perform the agreement on his part. Performance of the covenant, on the part of the plaintiffs, would have been actually executing and delivering the bond and mortgage.

The covenants of these parties, respecting the deed, and the mortgage to secure the purchase money, being both to be performed on the same day, are dependent covenants, in which, according to a clear legal principle, performance can not be exacted from either party, as a condition precedent. Both, it is understood, must perform at the same time, neither being under any obligation to trust the other.

That these covenants are dependent, see 6 Ohio Rep. 310, Mc Coy’s Adm’r v. Bixbee’s Adm’rs; and 8 Ohio Rep. 49, Dustin v. Newcomer.

These eases determine, also, the effect of dependent coy enants upon the right of the parties, and settle what must be done by each before he can sue the other. The first case was upon covenants between Bixbee and McCoy, for the sale of land by one, and payment of the purchase money by the other, where the court pronounced the covenants mutual, and in which they say, if McCoy would show a good title to sue, on the covenant of Bixbee, he must aver, either that he has paid, or that he has tendered, and is ready and willing to pay.

The case in the 8th Ohio Rep. re-affirms the principles established in the 6th, and declares that, by the English practice, neither party can sue, without making his part of the contract a condition precedent; and that this rule is strictly adhered to by our courts in cases at law.

The case made according to the declaration before us is this : The parties meet on the day when the acts required of each in the article, are to be done; the defendant refuses to perform on his part, and therefore, the plaintiffs neither perform, nor tender performance. The consequence to the defendant of his neglect and refusal, is, that he can maintain no action at law for the purchase money, because he has neither delivered nor tendered a deed. Apply the same rule to both these dependent covenants, and the plaintiffs, who do not show themselves ready to perform by offering or tendering the bond and mortgage, cannot maintain this action for the deed.

Great strictness is required of a party to suit, who would avail himself of a tender or of an offer to perform. The American and English authorities are substantially alike in this respect. See 2 Dallas 190; 6 Pickering 356; 17 Mass. 389 ; 5 Espinasse 48; 10 East 101; 15 Wend. 637.

There is found in this article, in connection with the covenant, on the part of the plaintiffs, the following expressions: “ when the said deed is tendered to them,” they will execute, etc.; and it may be asked whether the character of the covenant is not changed by the introduction of these words. We think not; to tender the deed was precisely what the defendant was bound to do, to entitle himself to an action for the purchase money, if, by the neglect or refusal of the other party, he could not effect a delivery of it. The demurrer, in the opinion of the court, was well taken, and the judgment of the common pleas is affirmed.  