
    Fannen against Beauford and Tillman.
    In the performance of covenants. Tenants, it ¡Ü he^wRo’ venís a from being done* shall not avail himself of the non-performance; and -where there are reeiproenl duties to be performed by the parlies he who alleges a breach ought to fuK.trh»*-was always ready and willing to perform vhai be was obliged to do; otherwise he shall mv be permitted focóme into court and tahe advantage of his own laches or neglect
    DEBT on bond, for the performance of covenants, &c. The bond was dated in December, 1779; the penalty, 100,000/. It was given for a plantation on the east side of 
      Broad River, valued at 1,450/. old currency, and was con» ditioned for the delivery of a negro man, Jack, value 6004 another negro to be valued by three indifferent persons, in April, 1781, and the residue in horses, to be taken also at a valuation.
    To this the defendant pleaded performance in part, and that he was prevented from performing the residue of the covenants, by reason of the plaintiff’s absence from the country, so that the defendant could not perform.
    Testimony was then produced, which proved, that the negro, Jack, was delivered agreeable to contract, but that the plaintiff shortly after joined the enemy, was taken prisoner by the American troops and sent into North-Carolina, and did not return again, so as to be publicly known, till 1791 ; and that it was the general report, thas he was ab. sent from 1780 till 1791.
    On the other hand again, testimony was given on the part of the plaintiff, that his wife remained in that part of the country, and that he occasionally came to see her, but did not appear in public, on account of the part he had taken with the enemy; and that his brother, fames Fannen^ was his reputed agent.
    It further appeared in evidence, that the defendant, Beau-ford, often inquired for this bond ; said he was ready to pay it off; and in 1789, went to the plaintiff’s brother, who he understood had a letter of attorney from the plaintiff to receive it, demanded a settlement and said he was ready to pay it off; but that he did not produce the bond, o.r letter of attorney, or appoint any place to value the negro or horses mentioned in the bond. The dispute in this case was re? speciing the interest on the bond, between the year 1779, and the day of the commencement of this suit in 1791.
    For the plaintiff, Fannen,
    
    it was urged, that it was the duty of the defendant to have gone and tendered what was due on this bond, before he could pretend to set up this de-fence against the demand of the interest; and as no such tender was made, or refused, he was certainly liable. They ‘admitted that -the defendant did go to the plaintiff’s brothers who was his agent, and demanded a sight of the bond, and that he said he was ready and willing to pay it off; but that he made no offer of a negro and horses, agreeable to the terms of the condition of the bond» A bare demand of a bond, and a declaration that the party is willing and ready to pay and satisfy, was no tender at law, without an offer of the property. It amounted to no more than loose, vague parlance, which could not debar the plaintiff of his legal right.
    For the defendant, the counsel insisted, that there was a wide difference between a tender and performance of covenants. In the one case, where money is to be paid, it is the duty of the obligor to go and tender the money really due, and this he must do at his peril, otherwise the interest will run on. But with respect to the performance of contracts, it is different. In such case, the maxim is, that he who prevents a thing from being done, shall not avail himself of a non-performance, occasioned by his own act. Doug. 655). 66J. They also argued, that where bulky ar-' tides were to be delivered, there was no occasion to carry them about. It is sufficient to go and inquire where the party will have them delivered. 5. Bac. tit. Tender. In the present case they said it was the plaintiff’s own fault to leave the country, or to place himself, in a situation, which rendered it necessary for him to be absent from it. That he was not in Carolina on the 1st of Aprils 1781 ; had left no known agent to transact his business therefore, it was impossible for him then to perform his covenant. From the very nature of this covenant, it was indispensably necesn sary, that both parties, or their agents, should be present, for there w.ere reciprocal duties to be done, before this covenant in April, 1781, could be performed. A negro and horses were to be taken at a valuation, each party was bound to choose an appraiser to set a value on this property, and in case of disagreement, these two were to appoint a third person. Without the presence, therefore, of both parties, or their agents, this covenant could not be performed. Thai gs soon as Beaufcrd hes>,rd of an agent, (which did not
    
      appear to be till 1787,) he went to the plaintiff’s brother and demanded a sight of the bond and letter of attorney, and offered to settle; but that the agent shewed neither, nor ,. . . . , . , did he appoint any time to value and appraise the negro and horses, agreeable to the terms of the contract ; that the defendant was under no obligation to carry negroes and horses about with him through the country, searching for this bond, &c. He had a fixed residence, was well known, and it was easy for the other party, either to have gone to his house, or appointed some convenient place, in the neigh-bourhood, to háve valued and received this property in satisfaction of the bond. But as he did not do so, and as, moreover, the plaintiff himself never appeared, he ought not, at this day, to be permitted to come in and take advan-age of his own absence, neglect or delay.
   Bay, J.

Where money is to be paid, the obligor is to tender it at his peril ; but in case's of mutual covenants, where there are reciprocal duties to be performed by each party, there the party alleging a breach, ought to shew that he was always willing and ready to perform what, on his part, he was obliged to do. But if, on the contrary, he is not ready, or if he be the means of preventing it from being done, he shall not be permitted to come into a court of justice, and take advantage of his own laches or neglect. Even in cases where the covenants are not reciprocal, as wheré bulky or heavy commodities are to be delivered, the covenantor is not obliged to carry them about with him. It is sufficient if he inquire, and request of the. other party, to know where he would wish to have them delivered ; and if he refuse to point out a place for their delivery, it is his own fault. From these principles the jury must judge of the case. If the plaintiff had been ready on the 1st of April, 1781, and always since, to receive the property mentioned in the condition of the bond, and also to have nominated an appraiser, to fix a valuation on them ; or if he had nominated an agent for that purpose, who had also been ready, then there can be no doubt but he would be entitled to a verdict for the whole amount of principal and interest. But, on the mntrary, if they shall be of opinion that the plaintiff was not ready on the day the contract was to have been performed, or at any time since, or that he had left the country without appointing an agent to act for him, or if that agent was mot known to the defendant, then it is clear that he himself was to blame, and he is obliged to take the consequences. Even if he had left an agent — if such agent, so -many years after the time fixed for performance had expired, had not appointed a time and place for performance, Still the blame must rest on his shoulders.

Carnes and Harper, for plaintiff.

I)esaussure and Ramsay, for defendants»

The jury returned a verdict in favour of the plaintiff, for §50/. old currency.  