
    E. Webb v. E. Stevenson.
    Contract to convey as soon as purchase money is paid is mutual, and calls for simultaneous performance. Party that would sue upon such a contract-must perform or tender performance of his own part, before a causo of action accrues.
    This cause was adjourned from the county of Pickaway. The plaintiff declares in assumpsit upon an agreement entered into between the parties, by which the plaintiff agreed to sell to the defendant lot 17 in Circleville, and to convey the same to him in 283] fee, as soon as the purchase money should be paid, and ^also to procure a release of a mortgage upon the lot held by a third person, or if he did not, that the defendant should be at liberty to pay off the mortgage, and deduct the amount from the purchase money of the lot. By which agreement the defendant undertook to pay the plaintiff the sum of thirty-two dollars and seventy-five cents for the lot, on April 1, 1834. The plaintiff avers that he conveyed the lot to the defendant by a good deed, executed by himself and wife, and was, on said 1st of April, and still is, ready and willing to deliver the same to the defendant, on his paying the purchase money. He assigns for breach the non-payment of the purchase money.
    To this the defendant demurs :
    1. Because it is not averred that notice was given to the defendant of the execution of the deed, or any offer or tender to deliver it to the defendant.
    2. Because there is no averment that the plaintiff had procured a release of the mortgage or had a clear title to convey.
    J. L. Green, for defendant:
    A tender of the deed, or an offer to deliver it, and an averment of such ten der or offer, is indispensable to enable the plaintiff to recover. The form in which the averment is made does not enable the plaintiff to get round the difficulty. The averment is that “ the plaintiff did convey, etc., and was ready and willing to deliver,” etc. The operative words, the soul of the averment, is wanting. What boots it if the deed was executed, and peradventure locked up in the chest of the plaintiff? He should have tendered it, or told us he was ready, and offered to deliver the deed upon the payment of the purchase money.
    It is only necessary for the defendant here to establish that the agreements in this case are dependent on mutual covenants. In Jones v. Barkley, Douglas, 689, Lord Mansfield has laid down the distinction between covenants that are mutual and independent; such as are conditions and are dependent, and such as are mutual covenants, to be performed at the same time. So in the case of Kingston v. Preston, Doug. 690, 691, which last case is cited' by the Supreme Court of Ohio, in Courcier and Ravises v. Graham, 1 Ohio, 340. *These distinctions have not been exactly pre- [284: served in all the reported cases, but dependent and mutual covenants are considered as meaning the same thing. Goodison v. Nunn, 4 Term, 761.
    The settled rule, however, seems to be that whether the covenants be dependent or not must be determined by the good sense of the case and the evident meaning of the parties. And one of the rules for-determining the covenants to be dependent, growing out of this good sense, is where it evidently appears that neither party intended to rely upon the personal security of the othei\ The following cases fully illustrate the rules on this point, viz: Campbell v. Jones, 6 Term, 570-576; 7 Term, 130; Kingston v. Preston, Doug. 688; Green v. Reynolds, 2 Johns. 206; Porter v. Shepherd, 6 Term, 668; Glazebrook v. Woodrow, 8 Term, 370, 371; Havilock v. Geddes, 10 East, 504. In the last case it said “ that where mutual covenants go to the whole consideration on both sides, they are mutual conditions.” Powell on Contracts, 370, and 1 Salkeld, 171, are to the same point.
    In the case of Callonell v. Briggs, 1 Salk. 113, which is a leading case upon this subject, Lord Holt observes that though there be mutual promises, yet if one thing be the consideration of the other, a performance is necessary to be averred. That was a contract to deliver stock, and the principle there laid down was recognized in the case of Morton v. Lamb, 7 Term, 130, by Lord Kenyon.
    Now, how is this ease ? Webb agrees to make a deed so soon as the purchase money is paid, and Stevenson agrees to pay the purchase money on a particular day. Who was bound to perform the first act? They were to be concurrent; to be done at the same time. Webb was not bound to deliver the deed, but was bound to have one ready, and to offer to deliver it upon payment. Neither party intended to rely upon the personal security of the other. Suppose we transpose these conditions, and read them that so soon as Webb delivers the deed the purchase money should be paid. Would Webb have been bound to have delivered the deed until the purchase money was paid or offered? Could he be required to throw himself upon the personal security of the other party, who might, by conveying to a third person, have cut off Webb’s lien on the land, or at least put him to the trouble and 285] risk of ^seeking his money out of the property through a court of chancery ? The conditions were clearly mutual, and to be performed at the same time, and the want of the averment of performance, or readiness and tender, is fatal.
    It is said in Sug. on Vend. 171, margin 228, that in agreements for purchase, the covenants are always considered dependent where a contrary intention does not expressly appear. And in page 172, “If .a vendor or vendee wish to compel the other to observe a contract, he immediately makes his part of the agreement precedent, for he can not proceed against the other without an actual performance on his part, or a tender and refusal.”
    I refer the court, in addition, to the following cases : Ramsey v. Brailsford, 2 Les. 582; Green v. Reynolds, 2 Johns. 207 ; Porter v. Rose, 12 Johns. 209; 5 Johns. 181; 10 Johns. 266, etc.; Parker v. Parmelce, 20 Johns. 130. The last case is conceived precisely analogous to this. There the plaintiff agreed to sell defendant a piece of land, and defendant covenanted to pay for the same on January 1, 1818. And the plaintiff covenanted that upon the faithful performance by the defendant (i. e., so soon as the purchase money was paid) of' his covenants, he would execute a deed.
    Tho plaintiff was required to aver performance on the second point. It was certainly of consequence to the defendant that the release should be obtained, by the plaintiff, as upon its execution and delivery all questions of difficulty, Lorn that quarter, were at an end. It was part of the assurance upon which the title of the defendant materially depended. It was evidently intended that all questions growing out of the mortgage should be first settled, or so adjusted that the defendant might, with perfect safety, pay the purchase money. The defendant made it a condition of the purchase, reserving to himself, however, the right to pay out of the purchase money whatever might appear due upon the mortgage. Before he could safely pay anything, it was proper that he should be fully advised of the amount due the mortgage. Important' questions might arise. Ought there not, then, to be some averment to show the court that all had been done to place the defendant in that position of security, which would make it inexcusable on his part to fail in performing his part of the agreement? It does not lay with Webb to say that it was *un- [á88 necessary for him to discharge the mortgage, as the defendant had reserved to himself the right to do it. Much depended upon Webb’s agency in adjusting the amount duo, and even though he may conceive it unnecessary, he had bound himself to do it. If a party bind himself to do an act, even though the performance be unnecessary, he must do it. Doughty v. Neale, 1 Saund. 214.
    If it was important to the defendant that the plaintiff should get in the lien for the reason abo've given, it was manifestly the duty of the plaintiff to have given timely notice to defendant of his failure to do so. Can the court suppose that the defendant, on the 1st of April, coming with the impression that the plaintiff had complied with the contract, and prepared to surrender the release with the deed of conveyance, and finding the whole question open as to the settlement of principal and interest due on the mortgage, was under any obligation to proceed to a consummation of the contract ? I am aware of the general rule in relation to notice, but does not this case come within the spirit, if not the letter of that rule?
    J. Olds, for the plaintiff,
    contended that as the writing declared on, is not recited nor set forth at length in the declaration, nor on oyer, will it, for the purposes of this argument, necessarily be taken to contain what appears in the declaration, and nothing more. In relation, then, to the second cause of demurrer, it seems to be necessary only to remark that the objection can not go to the action, but only to the amount of the recovery. If Webb procured a release of the mortgage, he would be entitled to recover the whole amount of the purchase money, otherwise only the excess over the amount due on the mortgage, because Stevenson being authorized to pay off the mortgage out of the purchase money, would be authorized to retain a sum sufficient to make that payment, if made by Webb. The amount of the recovery is to be determined by evidence, and the defendant, by a proper plea, . may open the door for the admission of such evidence as will ascertain the amount to be recovered. In this case, under the general issue, evidence may be received, showing what should be recovered. A declaration showing good cause of action for any amount is deemed sufficient to call for a defense. To this point, 287] so obviously ^correct upon the general principles of pleading, no authority need be adduced.
    The first question raised on the demurrer seems to require more consideration. The defendant insists that a tender of a conveyance on the part of plaintiff should have been made, in order to give him a cause of action upon the contract. It should here be kept in mind that this is an action of assumpsit, not covenant. In assumpsit upon an express promise, if there be a sufficient consideration for the promise, and a sufficient averment of the consideration and undertaking, and of the non-performance, what more is necessary to give prima facie cause of action ? Should not excuses for non-performance be presented by plea? But if this is to be assimilated to an action of covenant, and the law of covenants to be applied, we insist that the defendant has not correctly interpreted the contract between these parties. Covenants have long been divided into the three classes, as quoted by defendant’s counsel from Doug. 690; yet courts have hitherto found great difficulty in determining to which class certain covenants belong. Some covenants are found to have the properties common to those of each and all of those classes; hence the judge finds the same difficulty in determining their classification as the physician does in ascertaining the disease of his patient, when the symptoms equally indicate the existence of different diseases. It appears to me, however, that much of this difficulty has been occasioned by an attempt to reduce all covenants to two classes only, or in making a third class not essentially different from one of the others. Thus, it is frequently said, that covenants are either dependent or independent, and those considered dependent are treated as mutually dependent; and those classed as independent, considered as mutually independent. The middle class of Lord Mansfield, whose classification is so frequently quoted, namely, “ conditions dependent upon each other,” can scarcely be distinguished by that definition from his third class of “ mutual covenants to be performed at the same time,” because these last are also conditions dependent on each other. If it be not presumption in me to venture upon a classification, I would thus define the three classes, to wit: covenants mutual and independent, covenants mutual and dependent, and covenants dependent and independent, that is, agreements in which the covenant of one party is dependent, and the covenant *of the other party is independent. Mansfield’s lan- [288 guage, in relation to his middle class of “conditions dependent on each other,” seems to imply a mutual dependence, yet the courts, in order to bring all covenants into the three classes, have been obliged to assign those wherein the performance of the one party was made to depend on the prior performance by the other party of a condition precedent to this middle class. If this, then, be a correct classification, or a correct definition of the classes heretofore made, it would follow that with the class of covenants, mutual and independent, either party might sue without an offer to perform on his part, each relying -on the covenant of the other, and not upon its performance. And with the second class, covenants mutual and dependent, neither could sue without a performance or offer to perform, because each relied upon the performance by the other, and not upon the covenant only. And with the third class, which is supposed to be the correct interpretation of Mansfield’s middle class, covenants dependent and independent, the one party could not sue without a performance or an offer to perform, yet the other party might do it.
    I shall endeavor to show that the agreement declared on in this case belongs to this class of covenants, dependent and independent; and that Stevenson could not sue without paying the purchase money or tendering payment, but that Webb may sue without making the conveyance or offering to make it. Stevenson promised, in consideration of the premises, to pay a certain amount of money on the 1st day of April. And what were the premises which constituted this consideration ? They were that the plaintiff had granted, bargained, and sold, and had bound himself to convey in fee a lot of ground, so soon as the purchase money should be paid.’ He did not promise upon condition that Webb would convey money on the first day of April, but he promised in consideration that Webb had bargained and sold, and had bound himself to convey. Here, then, did not defendant rely upon what had been done, and- upon the covenant of Webb to do more, and not upon the performance of that covenant for his security ? “ If,” say all the books, “ it shall appear to have been the intention of the parties to trust each to the personal security of the other, the covenants must be considered as independent.” And why, let me ask, when it seems to have been the intention of one party to rely upon the personal security of the 289] Mother, may not his covenant be considered independent, even though the other party choose to make his covenant dependent ? When the court can not say which party was to perform the first act, then they will consider the covenants as mutually dependent. But, in this case, can there be any doubt as to which party was to perform the first act? The defendant covenants to pay the money on a given day; the plaintiff does not covenant to convey on that day; he covenants to convey so soon as the purchase money is paid, that is, immediately after the payment of the purchase money, not immediately before the payment. Had Stevenson tendered the money on the 2d day of April instead of the 1st, would not Webb have been bound to convey as soon thereafter as a deed could be prepared ? I think he would, because he had contracted to convey so soon as the purchase money was paid, and if the payment were not deferred to such an unreasonable time as to amount to an abandonment of the contract, whenever payment was made Webb was bound to convey. This, then, shows that Webb had not covenanted to convey on any particular day nor at any time, unless the purchase money should first be paid — clearly making the performance by Stevenson a condition precedent. In the case of Fuller v. Adm’rs of Smith, 6 Cow. 13, it was held that where a conveyance was to be made on the payment of the purchase money, the vendee must not only pay or tender the money, but after waiting a reasonable time for the conveyance to be made out, must present himself to receive it. May it not be implied from this, that the court making that decision were of the opinion that the vendor need not move toward the execution, or even the preparation of a deed, until the purchase money is paid or tendered.
    
      The strongest case presented by the defendant’s counsel is that of Parker v. Parmelee, 20 Johns. 130. But if the New York decisions are relied on, I would present the case of Northrup v. Northrup, 6 Cowen, 296, which appears to me to overrule the former decisions. It is true the court there make a distinction between that and the former cases, referring the one to the second class of Lord Mansfield, and the others to the third. But is not this a distinction without a difference? If, in the one case, a bond and mortgage are to be given up and discharged upon the payment of a sum of money, and in the other case a conveyance is to be made *upon the payment of a certain sum of money— [290 where is the difference? The counsel for defendant in the case in Cowen considered his case as belonging to the same class with that in 20 Johnson, for he cited that same case in support of his position. But the court say “the plea is bad.” The payment of the money is a condition precedent. A general averment of his readiness to perform is all that can be necessary. Suppose, in this case, the covenant of Stevenson, as it now is, to make payment on the 1st day of April, and that Webb had covenanted to convey on the2d day of April, then the defendant would certainly be driven from his position, that these covenants were to be performed at the same time, and instead of referring them to Mansfield’s third class, he would have to refer them either to the first or second class. Where shall we stop then? Is not the principle the same, whether Webb’s covenant was to be performed on the day after the performance by Stevenson, or on the after part of the same day? If we apply the principle of the case of Fuller v. Adm’rs of Smith, that time is to be given to the vendor after the payment to prepare a conveyance, then Webb would have kept his covenant by conveying the day after the payment. But whether the time be a day, an hour, or a minute, it is sufficient that it is after the performance by Stevenson, and that a performance by him is a condition precedent.
    
    But let these covenants be classed as they may, it is sufficient to aver that a deed was made and ready to be delivered. Such is the language of the court, in the case in 5 Johns. 179, and is so quoted by our court in 1 Ohio, 341, 342, with the addition that in such a case, '“it is not necessary to aver performance, or an actual tender of performance.” The argument for the defendant admits that Webb was not bound to actually deliver the deed, and part with his title until he received his money. What good sense, then, is there in requiring him tó show it to Stevenson, and say, “ Sir, here is your deed, which you shall have when you pay me the money, and not till then? ” It would appear to me to be really a sham tender to say, here is your deed, but you are not entitled to it, and shall not have it at present. It is contrary to the common notion of a tender. When we tender money we admit it to be due, and the other party entitled to receive it. To say as above, 291] you shall have your deed when you pay me *the money, is saying nothing more than was said when the contract was first made ; it is only repeating the terms oí the contract, for by that Webb had said to Stevenson, you shall have your deed when you pay the money. And if we give the contract the 'most rigid construction contended for, that Webb should deliver the deed the very next minute after the payment of the purchase money, then he had performed on his part, for he had the deed prepared, signed, sealed, and acknowledged, and ready to be delivered the very minute the money should be paid. The defense then resolves itself into this, that the plaintiff did not first do that which by the contract was to be last done.
    Green, in reply:
    The counsel for the plaintiff does not meet the argument for the defendant on the second point. We say the obtaining of the release was a duty he imposed upon himself, and which he was bound to perform for the reasons assigned in the opening. The alternative was for the benefit and protection of the defendant, of which he might avail himself by averment and proof of the plaintiff’s inability to do what he had contracted to do.
    Counsel attempts a distinction between covenant and assumpsit, which, as applicable to this case, is not clear. It is certainly true, in general, that if there be a sufficient consideration to 'support the promise laid, and a sufficient averment of non-performance, a prima facie case is made; but here, the doing that which the plaintiff has not averred to have been done, should appear to have been done, is essential to the presentation of such a prima facie case as to put us upon a plea.
    I shall not attempt to follow Mr. Olds in his classification of covenants. The distinction seems to my mind plain enough, if we look to the explanation of Lord Mansfield, when classifying them. 1 Ohio, 340. Mr. Olds places this case as coming under that class of covenants which he denominates dependent and independent; that is, when the covenant of one party is dependent and the covenant of the other party independent. If, by the contract, the money was to have been paid on the 1st day of April, and the deed was to have been executed on the 1st day of May following, the case would come under Mr. Olds’ class of dependent and independent covenants. There the one party would trust to *the personal security of the other, as the acts are [292 not to be performed at the same time. But here I maintain that the day of payment being fixed; and the deed to be made and delivered at the same time, it is clear that there was no intention on the part of either party to trust to the other. Stevenson certainly did promise to pay uj)on condition that the deed should be made and delivered on the 1st day of April. Suppose the 1st day of April had been fixed for the execution and delivery of the deed, as well as payment of the purchase money; would it not then have been, past all doubt, the duty of Webb to tender the deed ? Do the words “.so soon ” mean a day after, or a week, or a year? If not a day, can they mean an hour, or a minute? In short, was it not the'duty of Webb to have said, “here is your deed, sir; pay me the money, and I will deliver it to you.” Here I am mot by a ease from 6 Cowen, 13, where the, court say, a “reasonable time should be allowed the vendor to prepare the conveyance.” What time did Webb need to “prepare a conveyance,” which he avers-had been executed and acknowledged by himself and wife, and Was then ready for delivery? In that case, in Cowen, Smith, the party to convey, was dead, and Fuller having paid the purchase money, had made no demand of the heirs of Smith; but commenced suit against the administrator to recover back the purchase money. A very different case from this. The court there, however, go no further than to say, “ that the purchaser should present himself to receive the conveyance, which he has thus required to be furnished.” Are this court advised that Stevenson did not present himself to receive the conveyance on the 1st day of April? Are they not, on the contrary, bound to presume that he did so present himself, as his absence is not averred ?
    Counsel refers the court to the ease of Northrup v. Northrup, 6-Cow. 296, which would seetm to be a parallel case with that at bar; but clearly the judge does not so consider it, for he places it as-coming under the second class of Lord Mansfield’s classification, .and the case of Parker v. Parmelee, 20 Johns. 130, as belonging to the third of Lord Mansfield’s classes. I respectfully request the court to compare the cases in 6 Cowen and 20 Johnson. If any difference exist, I confess it is beyond my comprehension.
    The case in 5 Johns. 177, was a very different case from this. 293] There the plaintiff could not have executed the ^mortgage until the defendant had made the deed conveying the title; and the court say, “there was nothing to be-done by the plaintiff, which he had power to do;” but, says the judge, “there are cases where both parties have the power to perform without any act being previously necessary to be done by the other. In all such •cases, it is necessary that the party bringing an action should .aver (if the act has not been actually performed) a tender and refusal, which is equivalent to a performance.
    The case of Courcier and Ravises v. Graham, 1 Ohio, 340, is also relied upon by plaintiff’s counsel. That case decides, that where "the acts are to be done at the same time, either party, to charge "the other, must aver performance or an offer to perform.
   Judge Wright

delivered the opinion of the court:

The question presented to this demurrer requires us to determine, whether the undertaking of the parties in the agreement •declared upon is dependent or independent. In contracts of sale and purchase of lands, where the acts to complete an agreement are to be done at the same time, we understand the rule to be, that if either would sue the other for a breach of the contract, he must perform on his part, or tender a performance. Sug. Vend. 171. A late case in the Supreme Court in New York, Parker v. Parmelee, 20 Johns. 130, seems analogous to the one at bar. The plaintiff, in that case, had agreed to sell the defendant a piece of land and to convey it to him, if he faithfully performed his part of the agreement; and the defendants agreed to pay the purchase money ■on a given day. The court held it essential to the plaintiff’s right to recover that he should aver a performance, or a tender on his part. We doubted, at first, whether in the case before us, inasmuch as the defendant agreed to pay the money to the plaintiff, he was not bound to seek him, and on that account, we doubted if the plaintiff’s readiness to perform, in case the defendant came to pay, was not sufficiently averred to entitled him to recover. But, upon the whole, we think the most intelligible and reasonable rule requires of either party to contracts for the performance of simultaneous acts, before he sues, to put his adversary in the wrong by performing, or offering to perform, on his part. The same principle has been decided at this term, in McCoy’s Adm’rs v. Bixbee’s Adm’rs, post.

*As to the outstanding mortgage in this case, the plaintiff [294 undertook to obtain its release; the defendant did not undertake to do so, though the privilege was given him, if he choose to avail himself of it, to obtain its discharge by applying to that object the required proportion of the purchase money. The declaration, in reciting the agreement of the parties, shows a mortgage to have ■existed. It nowhere shows its release. Prima facie, therefore, it remains a lien upon the lot. The purchaser of the lot is not bound to get it in, though under the contract, he may do so if he please. The seller, then, must aver that he has performed his part of the contract, and his ability to convey, before he shows a right to sue. He undertakes to make a deed in fee; and from his •own showing, it appears he has not the fee to grant.

The declaration, therefore, shows no right in the plaintiff to sue, because he has not done what he undertook to do himself to fulfill his part of the contract, and to put his adversary in the wrong.  