
    Bradford vs. Gray.
    When A covenanted, by the 25th day of December, 1831, to pay, or cause to be paid to B, $200, for the consideration of his relinquishing to W. S. his title to fifty acres of land, &c. Held, that the making the relinquishment is not a condition precedent to be performed by B, before B could maintain an action upon the covenant; but that the acts are to be done by each at the same time, and are concurrent conditions.
    It must appear clearly from the covenant, that the act to be done by the covenantee, was to be a condition precedent, and so intended by the parties.
    An averment in the declaration by the covenantor, of a readiness to perform his part of the covenant, where the acts are concurrent, is sufficient, without pointing out the mode of performance.
   Peck, J.

delivered the opinion of the court.

This was an action of debt, brought on an instrument under seal, in the following words and figures;

“<$200: By the 25th December, 1831, I will pay, or cause to he paid to Joshua Townsend, two hundred dollars, for the consideration of his relinquishing to W. S. Gray, his title to fifty acres of land on the Hurricane Fork of Paint Rock. Given under my hand and seal, the 28th August, 1830. George Gray. [l. s.]

There are three counts in the declaration; one in common form for the two hundred dollars, not noticing the relinquishment. The next count in the same form, averring that the said Joshua did relinquish to the said W. S. Gray, his title to the said fifty acres in said writing specified, to wit, on the day and year first aforesaid. In the third count was this averment: “That said Joshua is now, and always has been, ready and willing to make the relinquishment to the said W. S. Gray, of and to the said fifty acres of land,” &c. with the Usual conclusion, that he had not paid, &c. To this there was a demurrer and causes assigned, that there was no sufficient averment of performance. Both the county and circuit court gave judgment on the demurrer for the defendant. And the question on the writ of error here, is, whether the declaration contains a good cause of action. It is insisted, that the relinquishment of the land is precedent to payment of the money, and that the manner how relinquished, not being shown by averment, so that the court can judge of its sufficiency, the declaration is defective.

We hold, that the relinquishment is not, by the terms of the covenant, a condition precedent. It is neither expressed or implied, that for and in consideration of the relinquishment, the defendant would pay; it is just as fair to infer from the language used, “for the consideration of his relinquishing,” that the act was already performed. We have the rule more applicable to this case in 1 Chitty’s Pleading, 281: “Where two acts are to be done at the same time, as where A agrees or covenants to convey an estate, or to deliver goods to B on a named day, or generally, and in consideration thereof, B covenants to pay A a sum of money on the same day, or generally, neither can maintain an action without showing performance of, or an offer to perform, or at least a readiness to perform his part, though it is not certain which of them was obliged to do the first act; and this rule particularly applies to contracts of sale.”

It is conceding all that the defendant ought to ask, to bring the present case within the rule cited, and admit its application. The declaration averring, as it does, a readiness to perform, is sufficient. The cases of Cunningham vs Merrell, 10 John. Rep. 203, Seers vs Fowler, 2 John. Rep. 272, are strong to maintain the present action. There, hy the terms of the contract, the money was to he paid hy a day certain; and which is to happen before the performance of the service or hy a day certain, and there is no day certain for the performance; the performance is not a condition precedent. The demurrer should have been overruled; we, therefore, so dispose of the cause, and give judgment on the demurrer for the plaintiff

Catron, Ch. J.

(dissentients.) This controversy arises on the following covenant, viz: “By the 25th of December, 1831,1 will pay or cause to he paid to Joshua Townsend, two hundred dollars, for the consideration of his relinquishing to W. S. Gray, his title to fifty acres of land on the Hurricane Fork of Paint Rock. Given under my hand and seal this 28th August, 1830.

George Gray. [l. s.]

This obligation Townsend assigned to Jos. H. Bradford, who sued Gray thereon in the assignee’s name. The first count declares on the above, as on a mere bill single, for two hundred dollars, without averring that any relinquishment had been made, by Townsend to W. S. Gray. The next count avers, “that the said Joshua Townsend did relinquish to the said W. S. Gray, his title to the fifty acres of land in the writing specified, to wit, on the 25th December, 1831. A third count avers readiness to perform, hut no offer. The whole declaration was demurred to, and the demurrer sustained. Has this instrument a condition precedent in it to he performed by Townsend, before Gray was hound to pay? To my view nothing is more clear. If it were intended to execute a mere sealed note, why not write it in the ordinary form? What is the plain and obvious sense to an ordinary mind? That Townsend should relinquish his title to fifty acres of land, in consideration of which George Gray should pay two hundred dollars, or cause it to be done by W. S. Gray. If authority could materially aid the common sense of mankind in construing an instrument obviously drawn without the least reference to technicalities, the authority is abundant, that Townsend had a condition precedent imposed on him. It matters not, says Lord Mansfield, in what form the covenant is drawn, or how transposed the dependent conditions are.— Kingston vs. Preston, 2 Burr. 893. 1 Chitty’s Pl. 279. 1 Term Rep. 645.

The words by which conditions precedent are usually created, are, for, in consideration of, provided, doing, performing, &c. 1 Chitty, 280. “In general, (says Chitty) if the agreement be, that one party should do an act, and for the doing thereof, the other shall pay a sum of money, the doing the act is a condition precedent to the payment, and the party who is to pay shall not be compelled to part with his money till the thing be performed.” If this rule (most accurately expressed above) has been violated by an English or American authority, I have no recollection of it. In cases of covenants for money, which might be discharged in bank notes, promissory notes, horses or cattle, a majority of this court has often and uniformly followed the rule, for the last seven years I know, and I think, at all times. Let us apply the above rule to the covenant before us. Was not George Gray to do an act, to pay $200 fifteen months after the date of the covenant; and for the doing thereof, for, and in “consideration” of the two hundred dollars, was not Townsend to relinquish to W. S. Gray the fifty acres of land? To my mind, such is the covenant. The averment of performance is clearly bad. It neither shows the kind of deed of relinquishment Townsend made, that he made any, or that it was for the land. It lay upon him to aver and prove he had vested all his title, such as it was, in W. S. Gray. The declaration is demurred to, and we are to judge from its face, whether a lawful relinquishment was made. 1 Chitty’s Plead. 307. Wright vs Tuttle, 4 Day’s Rep. 313.

Taul, for plaintiff in error. ‘

Campbell, for defendant.

The foregoing are the only points on which the judgment is sought to be reversed. Were we to do so, it is to be feared the defendant, Gray, would be compelled to part with his money, and Townsend keep his land.

Judgment reversed.  