
    HALLOWAY v. DAVIS.
    Mutual covenants — performance—special and common counts — readiness-—tender*
    Covenants to convey before the 1st of May, and to pay the purchase upon the execution of the deed, impose upon the party suing the obligation to perform or to tender performance. Each party, in such case, must be ready and willing, and offer before he can sue.
    It is not a performance of a covenant to convey before the 1st of May, to aver performance on the first.
    A party cannot recover on the common counts where there is an outstanding special, contract as to the same subject.
    Debt upon a sealed contract, that in consideration of eighty-five dollars, to be paid by the plaintiff, the defendant undertook to convey to the plaintiff a certain piece of land, by such conveyance as the plaintiff would approve, before the 1st of May, 1828, and that the plaintiff should pay the eighty-five dollars, upon making the conveyance. The plaintiff avers that he paid the eighty-five dollars, the 1st of May, 1828, and assigns for breach, the non conveyance of the land in the manner he approved.
    Pleas—
    1. That on the 30th of April, 1828, the defendant was ready and ■ willing, and offered to convey, but-the plaintiff would not designate the conveyance.
    
      2. That he was ready to convey on the 30th April, and offered to convey if the plaintiff would approve a conveyance; but he did not tender any to execute.
    3. That he was ready to convey the 1st April, and offered to do so, by such conveyance as the plaintiff should approve, if the plaintiff would pay him the eighty-five dollars; but he neglected to pay.
    To these pleas, there is a general demurrer, which is joined.
    
      B. S. Cowen,
    
    in support of the demurrer.
    
      W. B. Hubbard, contra.
   Hitchcock, J.

The covenant is one to convey before the 1 st of May, and to. pay upon the execution of the deed, and imposes upon the party suing, the obligation to perform, or to tender a performance before he acts. In covenants like this, where the acts to be done are simultaneous, neither party is compellable to part with his rights, until the other performs; but each must be ready and willing, and offer to perform before he can sue.

The averment in the declaration of the plaintiff’s payment on the 1st of May, will not avail him, even on demurrer; it is not an averment of performance, and shows no title in the plaintiff to recover. The covenant is to pay before the 1st of May; an averment of payment on the 1st of May, is an averment of payment after the stipulated time. This objection is fatal to the special count.

. The plaintiff cannot recover on the. common counts, because there is an outstanding subsisting contract, which must be first put an end to. If he would sue, he should offer to perform, and if that is refused, his right to sue would follow.

Leave was asked and given to the plaintiff to amend.  