
    Daniel Couch versus David Ingersoll.
    By an indenture dated in March, the plaintiff agrees to give the defendant 450 acres of land in Ridgeville, Ohio, the land to be as good as W's, and the defendant is to receive in addition 200 dollars at or before the 1st of July, and the plaintiff, as agent of N, is to receive therefor certain lands of the defendant, the possession to be given of the defendant's land by the 1st of April, and the defendant is to make his selection after B, which selection is to be made by or before the 1st of July, and in consequence of the defendant's not satisfying himself, then C, F and I shall average if he chooses the land above mentioned according to the above contract, or refuses to select himself, and if the said lands should not prove to be as good as the average of lands in that vicinity of towns, then this contract to be void: —-
    
      Held, that the covenant of the defendant to deliver possession by the 1st of April was an independent covenant, and that the plaintiff might declare for a breach of it without taking any notice of his own covenants, and that it was insufficient to plead that the land in Ridgeville, from winch the defendant might have made his selection, was not as good as W's or that the plaintiff was not the agent of N, or not authorized by N to make the contract or to prosecute the action, or that N had no land in Ridgeville.
    
      field also, that the covenants to convey were mutual dependent covenants, and that the plaintiff should have averred performance on his own part, or an excuse for non-performance; and that the defendant having omitted to select by the 1st of July, the payment or tender of the 200 dollars was a condition precedent to the plaintiff's right to demand a deed of the defendant, and should have been averred.
    This was an action of covenant on an indenture, made between the plaintiff and defendant on the 11th of March, 1822, in which the plaintiff agrees “ to give said Ingersoll 450 acres of land in the town of Ridgeville, State of Ohio &c., toe land to be of as good quality as Richard Wormer’s for farming &c., and the said Ingersoll is to receive therefor in addition 200 dollars in cash at or before the 1st of July next, and the said Couch, as agent for Norton, Stocking & Co., is to receive therefor &c., [several parcels of land in Massachusetts and New York] the possession to be given of said Ingersoll’s land by the 1st of April next, and the said Ingersoll is to make &c. his selection after John Buell &c., said Wormer &c. and George Chanter, which selection is to be made by or before the 1st of July next, and if said Buell should take up his contract in said town and Wormer should take, and Buell should prefer land in the other town mentioned in Wormer’s contract, then Mr. Ingersoll is to make his selection after the above mentioned contracts are completed, and in consequence of said Ingersoll’s not satisfying himself, then Jedediah Crocker Esq., David Foote and David Ingersoll, of Dover, shall average if he chooses the land above mentioned according to the above contract, or refuses to select himself, and the cash is to be paid by the 1st of July next, and said Ingersoll is to have the grain on his land near Mr. Brown’s, and if the said lands should not prove to be as good as the average of lands in that vicinity of towns, then this contract to be void.”
    The plaintiff, in his 1st count, after averring performance generally of all things on his part to be performed, alleges that the defendant had not delivered possession of the land to the plaintiff by the 1st of April, nor at any time since, nor conveyed the same to the plaintiff, although a reasonable time had long since elapsed and although often requested so to do, and especially on the 30th of July, 1822.
    In the 2d count the plaintiff, after averring a general performance on his own part, and that Buell &c. had made then selection by the 1st day of June, 1822, and that the land from which the defendant was to make his selection of 450 acres was of as good quality as the average of lands in the vicinity of Ridgeville, alleges that the defendant had not delivered possession of his land to the plaintiff by the 1st day of April, nor since, nor conveyed the same to the plaintiff as agent of Norton, Stocking & Co., nor in any other manner, although a reasonable time therefor had elapsed and although often requested so to do, and especially on the 30th of July, 1822.
    The defendant pleads in his 2d plea, that the plaintiff did not, on the 1st day of July next after the date of the indenture, nor at any time before or since, pay him the sum of 200 dollars, according to the indenture, although often requested.
    In the 3d, he pleads that the plaintiff" did not, at any time previous to the purchase of his writ, convey to the defendant 450 acres of land in Ridgeville, according to the indenture, although a reasonable time had elapsed, and although often requested.
    In the 4th, that the plaintiff was not, at any time between the date of the indenture and the purchase of the writ, ready and prepared to pay the 200 dollars and to convey the 450 acres.
    In the 5th, that the plaintiff did not, at any time between &c., offer to perform the covenants on the part of the plaintiff to be performed.
    In the 9th, that the plaintiff, at the time of the sealing and delivery of the indenture, was not the agent of Norton, Stocking & Co.
    In the 10th, that the plaintiff, at the time of making the indenture, was not duly empowered and authorized by Norton, Stocking & Co. to enter into the covenants contained in the indenture.
    In the 11th, that the plaintiff, on the day of the purchase of the writ, was not empowered and authorized by his principals, Norton, Stocking & Co., to commence and prosecute this action.
    In the 12th, that Norton, Stocking & Co., the principals of the plaintiff, at the time of making the indenture, had no estate or interest in, or right or title to any lands in Ridge-ville.
    In the 13th, that the land in Ridgeville from which the defendant might have made his selection of 450 acres, is not of as good quality for farming as Richard Wormer’s land.
    In the 14th, that Crocker, Foote and David Ingersoll of Dover, although the defendant refused to select 450 acres, did not, at any time previous to the purchase of the writ,' select and average 450 acres in pursuance of the indenture.
    There was a general demurrer to all these pleas except the 5th; to which there was a special demurrer, because .he “ matter contained in said plea is wholly immaterial and informal, and the allegations denied by said plea are not traversable, and nothing is alleged or denied in said plea upon which an issue can be formed, and for that said plea is uncertain, defective and informal.”
    
      Jones, in support of the demurrers,
    contended that the covenants in the indenture were independent, since the acts of the two parties were to be performed at different times. Boon v. Eyre, 1 H. Bl. 273, note ; Duke of St. Albans v. Shore, 1 H. Bl. 278 ; Pordage v. Cole, 1 Wms’s Saund. 320, note 4, rules 1 and 3 ; Campbell v. Jones, 6 T. R. 572 ; Hopkins v. Young, 11 Mass. R. 304. The defendant was to convey to the plaintiff by the 1st of April. This did not depend on any act to be done by the plaintiff. He was not to convey until the defendant made his selection of land. The defendant never has selected ; the plaintiff was entitled to notice if any selection had been made, but no such notice has been given.
    The 9th plea asserts a fact which is entirely out of the case. The plaintiff was to receive land as agent, but the covenants are with him personally. He could not sue in the name of Norton, Stocking & Co. It is immaterial whether he was their agent or not. The 10th and 11th pleas are immaterial, unless it were shown that Norton, Stocking & Co. were guardians of the plaintiff. In the 12th it is said that Norton, Stocking & Co. had no lands in Ridge-ville. We answer that the plaintiff did not covenant that they had any. As to the 13th, the contract was that the 450 acres, and not the whole tract from which they were to be selected, should be of as good quality as Wormer’s land. With respect to the 14th, we say that the defendant’s perfoimance of the contract did not depend on a selection’s being made by Crocker, Foot and Ingersoll of Dover. If it did, he should have given notice that they had neglected to make a selection.
    
      Mills and Porter, for the defendant.
    The plaintiff’s dec laration is bad, because neither count contains an averment that he had paid the 200 dollars by the 1st of July, according to the indenture, or that he had conveyed the land in pursuance of his covenants, before he commenced this action, nor is any excuse alleged for the non-performance of his covenants. There could be no doubt but that the covenants in the indenture were mutual and dependent, were it not for the clause, “ the possession to be given of the said Ingersoll’s land by the 1st of April next.” The natural import of these words is, that the plaintiff should have possession, that is, the use and occupation, of the defendant’s lands by the 1st of April, not that he should have a conveyance of them. But if this were not the natural import of the words, then wo should say that they ought to be construed in connection with other parts of the indenture. Sumner v. Williams, 8 Mass. R. 213, 214 ; 1 Phillipps on Evid. 416. It is apparent from the indenture, that the only object of the parties was to exchange land in Massachusetts and New York for land in Ohio ; and this, without either party’s relying on the personal responsibility of the other. They would naturally provide, according to our construction of these covenants, that the defendant should have time to go to Ohio to examine the land, and to return, and upon receiving a deed from the plaintiff, to execute to him a conveyance of the lands aere and in New York. On the other hand, it would be very improbable, that the defendant should covenant to con vey to the plaintiff by the 1st of April for no other consideration than the covenants of the plaintiff contained in this indenture. Had such been the intention of the parties, the defendant would rather have made the conveyance at the time when the indenture was executed. The plaintiff covenants to convey to the defendant the land in Ohio and to pay him 200 dollars by the 1st of July ; the indenture then proceeds, “ and the said Couch as agent for Norton, Stocking & Co. is to receive therefor ” the defendant’s lands. The plaintiff is to have a conveyance of the defendant’s lands, not for the plaintiff’s covenants, but for the 450 acres and the 200 dollars ; which shows that the plaintiff’s covenants are to be performed before he can call on the defendant to fulfil his covenants. The covenants of these parties would be held to be dependent, even according to the ancient narrow rules of construction. 1 Wms’s Saund. 320 a, note 4. But the last provision in the indenture, that “ if the said lands should not prove to be as good as the average of lands in that vicinity of towns, then this contract to be void,” shows that the defendant was to have time to go to Ohio and satisfy himself as to the quality of the lands, before he parted with his property. He could not do this between the date of the indenture and the 1st of April. It was not therefore the intention of the parties that the defendant should execute a conveyance by the 1st of April; for how could the contract oe conditional, be voidable, after the defendant had completely and absolutely executed his part of it ?
    The consideration of the defendant’s contract was executory. In such case the plaintiff must aver- performance of his part of the contract. 1 Chit. Pl. 309 ; Metcalf’s Yelv. 76 b, note 1 ; 1 Tidd’s Pr. 379 ; 1 Wms’s Saund, 320, note 4. The time for the performance of the defendant’s part of the contract was subsequent to the day w.ien the 200 dol« lars, part of the consideration, were to be paid. The payment should have been made by the plaintiff and averred in the declaration. 1 Chit. Pl. 313, 314; 1 Wms. Saund. 320 c, rule 2 ; Johnson v. Reed, 9 Mass. R. 78 Thorpe v. Thorpe, 1 Salk. 171 ; Hopkins v. Young, 11 Mass R. 305. The covenants on both sides, except for the payment of the money, which was to be performed presently, were to be executed at the same time. In such case an averment of performance, or at least of an offer or readiness to perform, is necessary. 1 Chit. Pl. 309, 310, 315 ; 1 Wms’s Saund. 320 e, rule 5 ; Morton v. Lamb, 7 T. R. 125, cited in 2 Wms’s Saund. 352 a; Goodisson v. Nunn, 4 T. R. 761 ; Gardner v. Corson, 15 Mass. R. 500 ; Green v. Reynolds, 2 Johns. R. 207 ; Porter v. Rose, 12 Johns. R. 212 ; Hudson v. Swift, 20 Johns. R. 24. The covenants here con-stitute the whole consideration on both sides ; they are consequently mutual conditions, the one precedent to the other, and the plaintiff must aver performance on his part. 1 Chit. Pl. 314 ; 1 Wms’s' Saund. 320 e, rule 4 ; Boone v. Eyre, 1 H. Bl. 273. The covenants are mutual, the one the consideration of the other, and in such case performance must be averred. 1 Chit. Pl. 315 ; Callonel v. Briggs, 1 Salk. 113 ; Campbell v. Jones, 6 T. R. 570. A party who seeks satisfaction for the non-performance of a contract must aver that he has performed, or offered to perform, the agreement on his own part. Glazebrook v. Woodrow, 6 T. R. 366, cited in 2 Wms’s Saund. 252 c ; Kingston v. Preston, cited in Jones v. Barkley, 2 Doug. 689 ; Phillips v. Fielding, 2 H. Bl. 123 ; Sugd. Law of Vendors, 162. . The principle of the cases seems to be, that where the plaintiff is to do an act to entitle himself to an action, he must show the act done, or that he has done every thing that was in his power to do. 2 Wms’s Saund. 352, note 3 ; Duke of St. Albans v. Shore, 1 H. Bl. 278. In West v. Emmons, 5 Johns. R. 181, Van Ness J. says, “ In all cases where both parties have the power to perform without any act being previously necessary to be done by the other, it is necessary that the party bringing the action should aver a performance, or a tender and refusal, which is equivalent to a performance.” In the present case both parties had such a power to perform. On the defendant’s refusal to select the land, it was incumbent on the plaintiff, if he would compel a performance on the part of the defendant, to cause a selection to be made by the individuals named, to tender a conveyance of the land thus selected, and the 200 dollars. The nature and necessity of averments in such cases was much considered in Rawson v. Johnson, 1 East, 203; Waterhouse v. Skinner, 2 Bos. & Pul. 447.
    The plaintiff’s declaration is bad likewise, because it does not aver a tender to the defendant of a deed of conveyance of his lands to be by him executed. Sugd. Vend. 163 ; Baxter v. Lewis, 1 Forrest’s Rep. Exch. 61 ; Webb v. Bethel, 1 Lev. 44 ; Hudson v. Swift, 20 Johns. R. 24.
    The first count is bad, because it does not aver that the land in Ridgeville is as good as the average of lands in that vicinity; and because it does not aver that Wormer, Buel and Chanter made their selection of lands by the 1st of July. 1 Chit. Pl. 309.
    In making the contract contained in the indenture, the plaintiff acted as agent to Norton, Stocking & Co. Dawes v. Jackson. 9 Mass. R. 490. The action therefore cannot oe maintained, because it is not brought in the name of the principals ; Gunn v. Cantine, 10 Johns. R. 387 ; Pigott v. Thompson, 3 Bos. & Pul. 147 ; Frontin v. Small, 2 Ld. Raym. 1418 ; Bogart v. De Bussy, 6 Johns. R. 94; and because the indenture is a nullity, being executed by the plaintiff in his own name, when he acted only as an agent. Combe’s case, 9 Co. 77 ; Com. Dig. Attorney, C 14 ; Frontin v. Small, 2 Ld. Raym. 1418 ; Fowler v. Shearer, 7 Mass. R. 19 ; Elwell v. Shaw, 16 Mass. R. 43. The indenture is void because the plaintiff, as is confessed by the pleadings, had no authority from Norton, Stocking & Co. to enter into the covenants contained in it. But if he had authority, he did not in form and substance pursue that authority. Com. Dig. Attorney, C 13 ; Banorgee v. Hovey, 5 Mass. R 36, 37.
    If the clauses respecting the agency of the plaintiff and the possession of the defendant’s land are not susceptible of the construction we would give to them, then the indenture is void for uncertainty. At least there is a latent ambiguity, which may be explained by parol evidence. Richards v. Killam, 10 Mass. R. 245 ; Phillipps on Evid. 410 ; Storer v. Freeman, 6 Mass. R. 440 ; Jackson v. Stanley, 10 Johns. R. 133 ; Jackson v. Hart, 12 Johns. R. 77 ; Mechanics’ Bank of Alexandria v. The Bank of Columbia, 5 Wheat 326.
    If the plaintiff has any right to a conveyance from the de fendant, it is in his capacity of agent ; but by his demurrer to the 9th plea he acknowledges that he was not the agent of Norton, Stocking & Co. The covenants of the defendant then are like a covenant to convey to a fictitious person, and have no binding force.
    By the demurrer to the 13th plea the plaintiff has ac knowledged, that the land from which the defendant might make his selection was not as good as Wormer’s land. This misrepresentation vitiates the contract.
    
      Dwight, in reply. The period between the 11th of March and the 1st of April was given, in order that the defendant might ascertain the quality of the plaintiff’s land in Ohio. This he might do by inquiring of persons acquainted with the land. It was not necessary for him to go there himself.
    To have possession was used as equivalent to a covenant to convey. It was intended that the plaintiff should have an equivalent for his covenants. The plaintiff would have no power to recover back the 200 dollars after he had paid it, if after six months the defendant could defeat the contract. There is nothing in the instrument to show tnat possession. was used in contradistinction to title ; and the clause. that the plaintiff should have one of the crops, shows that it was not so used. It was not a condition precedent, that the plaintiff should tender a conveyance of the 450 acres, since they were not selected ; and the plaintiff could not call on the commissioners to make the selection, without a notice from the defendant that he had not selected.
    The opinion of the Court was read at May term 1824, as prepared by
   Wilde J.

This case has been argued with great learning and ability ; and certainly there was ample scope for the ingenuity of counsel in the obscurity and perplexity of some parts of the case. There is little doubt, however, as to the general principles of the law ; the great difficulty lies in 'the construction of the contract, and in ascertaining the true intention of the contracting parties. But unskilfully and carelessly as the contract appears to have been drawn, the intention of the parties in some particulars is sufficiently clear.* In the first place, it is clear that the first act was to be done by the defendant. He was to deliver possession of the lands in Lee and in the State of New York, by the 1st day of April next after the date of the contract; and nothing was to be done or performed by the plaintiff until after that time. This, therefore, is an independent covenant, and it is unnecessary for the plaintiff to show or aver performance of the covenants on his part. If a day is appointed for performing a covenant on one part, and it is to happen or may Happen before the covenants on the other part are to be performed, the covenants are independent. 1 Wms’s Saund. 320, note 1 ; Campbell v. Jones, 6 T. R. 571 ; Heard v. Wadham, 1 East, 629 ; Terry v. Duntze, 2 H. Bl. 389 ; Seers v. Fowler, 2 Johns. R. 272 ; Smith v. Woodhouse, 2 New Rep. 239. The breach of this covenant is well assigned, and the plaintiff is enti led to recover, unless some one of the defendant’s pleas is a sufficient bar. But none of the pleas now before us’ excepting the 9th, 10th, 11th and 12th pleas, are at all applicable to the covenants respecting the delivery of possession. If the 13th plea was intended as an answer to this covenant, it is clearly insufficient. That plea alleges, that “ the land in Ridgeville from which the defendant might have made his selection of said 450 acres, is not of as good quality for farming as Richard Wormer’s land.” This averment however is not at all inconsistent with any covenant or condition to be found in the deed. The plaintiff covenants that the 450 acres to be selected by the defendant, were to be of as good quality for farming as Richard Wormer’s land, but not that the whole tract from lohich the selection was to be made was of the like good quality. So, in another part of the deed, the parties agree that if the. said lands (referring, I take it, to the lands from which the selection was to be made) should not prove to be as good as the average of the lands in the vicinity, then the- contract should be void ; but it was riot to be void, because the lands were not of so good a quality as Warmer's. This plea therefore is no bar to the covenants respecting the delivery of possession, as to which we can perceive no objection to the plaintiff’s right to recover; for it is manifest that the 9th, 10th, 11th and 12th pleas are insufficient. As to the three first of these pleas, it will suffice to remark, that the deed declared on is not the deed of Nor-tori, Stocking & Co., nor did the plaintiff covenant in their name, nor undertake to bind them as their agent. He is only named as their agent by way of recital in the body of the deed ; but they are not parties to any of the covenants. As to the 12th plea, it is immaterial that the said Norton, Stocking & Co. had no title to the land agreed to be conveyed. Non constat but that the plaintiff had a good title. And if he had not, he might procure one, which would be sufficient to enable him to fulfil his covenant.

The other covenant on which the plaintiff relies, is the covenant for conveyance. This and a corresponding covenant on the part of the defendant we consider as mutual dependent covenants. The principal object of the contract was the exchange of lands. No time was appointed for making the conveyances, but as the one conveyance was the consideration of the other, we cannot doubt that it was the intention of the parties that both should be made at the same time. The plaintiff declares that the defendant’s covenant was to have been performed within a reasonable time ; but it cannot be held reasonable that the plaintiff should require the defendant to perform his covenant, before the plaintiff should be ready to perform his. If the parties had intended that any such advantage of priority should be secured to either party, it would have been expressed in the deed. It has been argued, that the defendant was bound to convey at the same time he was to deliver possession ; but it is manifest from the language of the deed, that such was not the intention of the parties. The two conveyances were to be concurrent acts, and the covenants are therefore dependent. But this point, which was very much discussed by counsel, does not appear to be material. For if the plaintiff was prevented from performing his covenant by the neglect of the defendant, it is equivalent to performance by the plaintiff. Smith v. Woodhouse, 2 New Rep. 240; Hotham v. E. I. Company, 1 T. R. 638. Now it is clear that no conveyance could be made by the plaintiff, before the selection of the lands was made ; and this selection was to be made by the defendant. If he refused to make it, it was incumbent on him to give notice, that the selection might be made by the three commissioners appointed for that purpose. But it seems that this neglect of the defendant ought to be alleged in assigning the breach.

This defect in the declaration, however, is not material, because on another ground the declaration is defective. It is stipulated in the deed, that the plaintiff should pay the

sum of 200 dollars. If this payment was to be made previous to the time when the conveyances were to be made, or at the same time, it is very clear that the plaintiff cannot recover without averring that he paid or tendered payment of the money. This payment was to have been made the first day of July, nearly a month before the time when a deeu was demanded, and before the time contemplated by the parties for the performance of the principal covenants. The defendant was not obliged to make the selection before the first day of July ; and if not then made, a further time was allowed, that it might be made by the men appointed for that purpose. It is true the defendant might have made his selection before the first day of July, and if he had so done, the plaintiff might have tendered a deed, and the defendant would have been obliged to convey the lands according to his covenant, without any tender made of the 200 dollars ; but this was not done, nor was he compellable to make the selection until after the first day of July. It plainly follows, that when the plaintiff demanded a deed of the defendant on the 30th day of July, he was obligated to pay or tender payment of the 200 dollars. Lord Kenyon states the rule correctly on this point, in the case of Campbell v. Jones, 6 T. R. 571. “If one thing is to be done by a plaintiff, before his right of action accrues on the defendant’s covenant, it should be averred in the declaration that that thing was done.” The 200 dollars were part of the consideration the defendant was to receive for the conveyance to be made by him, and unless that conveyance was agreed to be made at all events before the time appointed for the payment of the money, it is very clear that the payment is a condition precedent. Smith v. Woodhouse, 2 New Rep. 233.

On the pleadings now before us it is clear that the plaintiff is entitled to recover on the covenant first to he performed, and that he is not entitled to recover on the other covenant.

The opinion of the Court is, that the said several pleas in bar are sufficient in law, and that the plaintiff is entitled to damages for the breach of the covenant respecting the delivery of possession of the lands which were to have been delivered to him, unless he should be barred by the finding of the jury as to some one of the issues of fact. 
      
       In determining the question whether covenants are conditional, independent or mutually dependent, the true intention of the parties collected from the language of their contract, is held to be the proper guide for the court. Howland v. Leach, 11 Pick. 154; Manning v. Brown, 1 Fairfield, 51; Platt on Covenants, 72 to 80.
     
      
       See also Cunningham v. Morrell, 10 Johns. R. 204.
     
      
       See Howland v. Leach, 11 Pick. 154.
     
      
      
        Robb v. Montgomery, 20 Johns R. 20. See Lewis v. Meldon, 3 Randolph,
     
      
       For a learned and full exposition of the subject of covenants dependent, concurrent and mutual or independent, see Platt on Covenants, c. 3, § 5, (Law Library, No. 7.) v
     
      
      
        Barksdale v. Toomer, 2 Bailey, 180 ; Bank of Columbia v. Hagner, 1 Peters, 464, 465; Ackley v. Elwell, 5 Halsted, 304 ; Central Turnpike Co. v. Valentine, 10 Pick. 142 ; Bradford v. Gray, 3 Yerger, 463 ; Richards v Cart 1 Blackford’s (Ind.) R. 313.
     