
    [Merrimack,
    December, 1877.]
    Sherburne v. Tebbetts.
    One may break his covenant by disabling himself to perform it.
    Debt, on a bond conditioned to convey to the plaintiff a tract of land. Plea, non est factum, with a brief statement of performance. Facts found by the court.
    
      I. A. Eastman and T. Cogswell, for the defendant.
    
      J. Y. Mugridge, for the plaintiff.
   Smith, J.

The defence was performance. The defence set up was the conveyance by the defendant to one Lamprey, at the request of the plaintiff’s father, the plaintiff’s agent. But the court having found the fact to be that the plaintiff’s father was not authorized to make the request or to assent to the conveyance, the defence fails on the facts. Whether proof of such a conveyance, assented to by the plaintiff or by his authorized agent, would be admissible under the plea of performance, we need not inquire.

Exceptions overruled,.

Stanley, J., did not sit: the others concurred.  