
    Charles Howland versus John Leach et al.
    
    pie plaintiff covenants to sell a house to the defendant for a certain sum, the defendant ;ovenanting to pay the plaintiff that sum on the day when the house shall be finished and the key delivered to the defendant with a satisfactory deed and title free of all incumbrances. Held, that the covenants were dependent, and that the plaintiff was not bound to make an unconditional tender of a deed, unless the defendant was willing to accept it and pay the purchase money.
    Declaration on the foregoing contract, that the house was finished on a certain day, and'that on the same day the plaintiff tendered the key to the defendant and then offered to deliver to him a good and sufficient deed with warranty, duly acknowledged, conveying the fee free of incumbrances, and offered to make to the defendant a good and sufficient title, and was ready, able and desirous to do so, but that the defendant refused to accept such conveyance and title. Plea, that the plaintiff had not a clear title, but that having mortgaged the house to P., he had conveyed the equity of redemption to R. Replication, that R., by a bond of even date with the deed to him, had covenanted to reconvey to the plaintiff, and that he was willing and offered to do so whenever the defendant would accept the plaintiff’s deed. Held, that the declaration and replication were sufficient.
    This was an action of covenant broken, brought against the executors of the will of Thomas Leach.
    The declaration contained two counts, founded on the following contract: — “ The said Howland agrees to sell his house in Chamber Street to the said Leach for the sum of $ 5500, finished complete to the turning of a key, under the direction of said Leach or his lady, and the said Leach agrees, obligates and binds himself, his heirs, &c. to pay to the said Howland the aforesaid sum of $ 5500, on the day that said house is finished and the key delivered to him with a satisfactory deed and title free of all incumbrances. Boston, Oct. 30th, 1827.” The contract was signed and sealed by both parties.
    The second count avers, that the house was finished according to the agreement, on November 27, 1827, and that on the same day the plaintiff tendered the key to T. Leach, and also offered to execute and deliver to him a good and sufficient deed with warranty, duly acknowledged, with a release of dower from the plaintiff's wife, granting and conveying the fee free of incumbrance, and offered to make to T. Leach a good, sufficient and satisfactory title, and was ready, able, willing and-desirous to do so ; but that Leach refused to accept such conveyance and title.
    The fifth plea (which is to the second count) is, that the plaintiff never delivered nor tendered a deed duly executed ; and concludes to the country.
    The eighth plea (to the same count) is, that the plaintiff never delivered, nor tendered and offered to deliver a warranty deed duly executed and acknowledged, sufficient to grant the fee free of incumbrances ; and concludes to the, country.
    To these two pleas the plaintiff demurs specially.
    The sixth plea (to the same count) is similar to the eighth, except that it concludes with a verification. To this the plaintiff replies, that he did offer to deliver a good warranty deed duly executed, sufficient to convey the fee free of incumbrance ; and the defendants demur specially.
    The seventh plea (to the same count) is similar to the fifth, except that it concludes with a verification. Replication, that the plaintiff did offer to execute and deliver a deed duly executed ; and general demurrer.
    The fifteenth plea (to the same count) is, that at the time of the plaintiff’s supposed offer to deliver and execute a deed, he had not a clear title and sufficient estate, to convey the fee free of incumbrance, but that having mortgaged the premises to one Parkman, which mortgage was then undischarged, he had conveyed the equity of redemption to one Redman. Replication, that by a bond of even date with the deed to Redman, duly executed and recorded, Redman had covenanted, upon certain conditions therein mentioned, to reconvey and quitclaim to the plaintiff, and that at the time referred to, Redman was ready, willing and desirous and offered to do so, whenever the testator would accept the plaintiff’s deed. To this the defendants demur specially.
    Several issues of fact were tried before a jury ; who found that the house was finished according to the contract; that the plaintiff tendered the key; that he did not tender a deed ; that he offered to execute and deliver a sufficient deed duly acknowledged by him, with a release of dower by his wife, conveying' the fee free of incumbrance ; that Parkman offered to the testator to discharge his mortgage ; and that the testator refused to accept a valid conveyance and satisfactory title.
    
      March 11th
    
    It was testified, that the plaintiff went to the house of the testator, carrying with him the key of the house in question, which was then finished, and a draft of a deed intended to be executed by the plaintiff and his wife, and some other documents respecting the title ; that the testator was ill and could not be seen ; that the plaintiff offered the key and papers to Mrs. Leach, the testator’s wife, who was authorized by the testator to act on his behalf; that she said she would have nothing to do with the house, and the papers should not be left with her ; that she gave no reason for it; that as the plaintiff was going out, she threw the papers after him, and that he went away leaving the papers on the entry floor and the key on the entry table ; that the plaintiff stated to her that he was ready to execute a satisfactory deed and make a satisfactory title ; that Parkman, (although his mortgage debt was not due,) and Redman, were willing each to discharge his mortgage, upon being paid the sum due to him ; that the house was sold by auction in December 1827, for $ 5025, and was bought by one Fowle for the testator ; and that the plaintiff, on the 27th of December, paid off all incumbrances and gave a deed to Fowle, who afterwards gave a deed to the testator.
    
      W. H. Gardiner, for the defendants.
    The obligation on the part of the testator was dependent on a performance by the plaintiff, and the plaintiff must show a performance on his part, or what is equivalent to a performance. Goodisson v. Nunn, 4 T. R. 761 ; Glazebrook v. Woodrow, 8 T. R. 366 ; Green v. Reynolds, 2 Johns. R. 207 ; Johnson v. Reed, 9 Mass. R. 78 ; Morton v. Lamb, 7 T. R. 125. The jury have found that there was not a tender of a deed, and the defendants contend that no equivalent is proved.
    The question upon the demurrers goes back to the sufficiency of the second count; the objection to which is, that it does not set forth a valid excuse on the part of the plaintiff, for not performing the contract. The refusal of the testator was only coextensive with the plaintiff’s offer, which fell short of a tender. Ferry v. Williams, 8 Taunt. 62; 1 Chit. Pl. 318; Austin v. Jervoyse, Hob. 69, 77 ; 2 Rol. Rep. 238 ; Jones 
      v. Barkly, 2 Doug. 684 ; Rawson v. Johnson, 1 East, 203 ; Phillips v. Fielding, 2 H. Bl. 123 ; St. Albans v. Shore, 1 H. Bl. 270 ; Luxton v. Robinson, 2 Doug. 620 ; Bordenave v. Gregory, 5 East, 107 ; Lancashire v. Killingworth, I Ld. Raym. 686 ; Thomas v. Evans, 10 East, 101 ; Newcomb v. Brackett, 16 Mass. R. 161.
    
      April 1st.
    
    The second count is defective also, because it does not set forth an ability on the part of the plaintiff to perform his contract. It does not aver that he had an estate free from incumbrances. Mason v. Corder, 7 Taunt. 9 ; Judson v. Wass, II Johns. R. 525 ; Porter v. Noyes, 2 Greenl. 22 ; Jones v. Gardner, 10 Johns. R. 266 ; Robb v. Montgomery, 20 Johns. R. 15.
    But the case is still stronger upon the evidence. The plaintiff was bound to exhibit to the testator a satisfactory title ; and nothing short of an express waiver in respect to the incumbrances, would make the plaintiff’s offer equivalent to a tender of a deed. Jones v. Gardner, 10 Johns. R. 266 ; Hobart v Burke, 11 Serg. & Rawle, 246.
    
      Fletcher, for the plaintiff,
    was stopped by the Court.
   Wilde J.

delivered the opinion of the Court. [After re citing the contract on which the action is founded, and the. second count : —] All these averments are verified by the finding of the jury on the several issues, and the evidence as reported seems to be satisfactory and sufficient to warrant the jury in so finding. The plaintiff, therefore, is entitled to judgment, if this count is good, (as we think it is,) unless the action be barred by matter of law set up in the defence. It is objected that this action cannot be maintained, without showing a due performance of the covenant on the part of the plaintiff. This objection depends, on the construction of the contract, and on the question, whether the covenants are mutually dependent, or whether the performance of the plaintiff’s covenant is not a condition precedent. In determining the question whether the covenants are conditional, or independent, or mutually dependent, we are to be governed, not by technical and artificial rules, but by the true intention of the parties as expressed by the language of the contract. This rule of constraction is well established by all the modern cases ; and taking it for our guide, we cannot entertain a doubt as to the construction of this contract. Both covenants were to be performed at the same time ; neither party intended to trust to the personal security of the other; and, consequently, neither party was obliged to perform his part of the agreement, unless the other party was ready and willing at tire same time to perform his part also.

It is quite clear, therefore, that the covenants are mutual and dependent. In all such cases neither party can maintain an action without showing a performance, or offer to perform, on his part. An offer by the plaintiff to perform his part of the agreement, and a refusal by the defendant’s testator to ac cept a conveyance, is averred in the declaration and fully proved by the evidence. This was all the plaintiff was bound to do. He was not bound to make an unconditional tender of a deed, unless the other party was willing to accept it and to pay the purchase money.

It is no valid objection, that at the time the offer was made by the plaintiff, there were outstanding unsatisfied mortgages on the estate, for the plaintiff offered to procure discharges and give a satisfactory title. This would have been done but for the unqualified refusal of the testator’s agent to complete the purchase. It is manifest from the evidence, that the plaintiff could and would have given a good title, and that the refusal of the testator’s agent was not founded on any doubt of his ability so to do. The only reason given for the refusal, was, that the testator’s wife was not satisfied with the house ; the true reason probably was, that she was not satisfied with the price, as the house was afterwards purchased in at a reduced price. But wdiatever may have been the reason of the refusal, it is sufficient for the plaintiff to show that there' was a refusal by the testator’s agent to accept a deed according to the terms of the contract. After such a refusal it would have oeen a useless ceremony for the plaintiff to make a formal tender of a deed, even if a tender were necessary. For if the plaintiff was prevented from making a tender of a good and sufficient deed by the testator’s refusal to accept it, it would amount to a waiver of the tender, and dispense with the necessity of the plaintiff’s making it. It is clear, however, that the plaintiff was not bound to make an unconditional tender of a deed in terms. An offer to perform the contract on his part, he having the ability to perform it, which the evidence shows, and a refusal by the testator to perform his part of the agreement, amount clearly to a breach of the testator’s covenant.

On these principles the fifth, sixth, seventh and eighth pleas are adjudged bad, and the replication to the fifteenth plea is adjudged good.

Judgment according to verdict. 
      
       See Kane v. Hood, 13 Pick. 281; Bean v. Atwater, 4 Connect. R. 3; Leonard v. Bates, 1 Indiana R. 175; Weaver v. Childress, 3 Stewart (Ala.) R. 361; Sprigg v. Albin, 6 J. J. Marshall, 161; Passmore v. Moore, 1 J. J. Marshall, 591; Low v. Marshall, 5 Shepl. 232; Latorence v Dole, 11 Vermont R. 549 ; Mattock v. Kinglake, 10 Adol. & Ellis, 50.
     
      
       See Hard v. Bowers, 23 Pick. 460.
     