
    Dakin & Bacon vs. Williams & Seward.
    Where A. sold a newspaper establishment to B., and covenanted with him that while he continued the publisher or proprietor of a paper in the place where the establishment was situated, that he (A.) would not publish, or aid, or be accessary to the printing or publishing of a paper in the same placo, and bound himself in the sum of $3000 as liquidated damages; and in the same instrument B. covenanted to pay A. the sum of $3500, in consideration of the conveyance of the establishment ; it was held, in an action by B. against A. for a breach of the above covenant, that the covenants of the parties were dependent, and that to entitle the plaintiff to sustain his action he was bound to aver performance of the covenant on his part.
    Demurrer to declaration. An instrument in writing under seal was entered into by the plaintiffs and defendants on the 10th May, 1825, by which Williams, in consideration of the sum of $3500, to be paid by Dakin and Bacon, sold, transferred *"and conveyed to Dakin and Bacon a newspaper establishment, from which was issued the paper called the Utica Sentinel, and all his right, title and interest in and to the subscriptions, good will and patronage of the paper, together with the types and printing apparatus, to the amount of $500, to be appraised by three indifferent men, to be designated by the parties. In consideration whereof, Dakin and Bacon covenanted with Williams to pay him $3,500, viz. $3,000 for the patronage and good will of the newspaper establishment, and $500 for the types and printing apparatus, in seven semi-annual instalments, with interest, the last instalment being due on the 10th November, 1828; to secure which payments at the times specified, Dakin and Bacon covenanted to give their promissory notes, endorsed by four individuals named in the agreement. Next follows a covenant by Williams and Seivard, that they will not establish, set up or commence the publishing, editing or printing of any paper of a literary, political, or miscellaneous character in the village of Utica, or county of Oneida, during the time Dakin and Bacon, or either of them, or their, or either of their immediate assigns shall continue the publishers or proprietors of any paper in Utica ; that they will no¿ suffer any paper to be printed or published in any building owned by them ; and that they will not aid, assist, or be in any way accessary to the printing or publishing of any such paper by any person whatever in the said village or county during the time above specified, and bind themselves to the faithful performance of this covenant in the sum of $3000, which sum is declared liquidated damages, and not a penalty. In January, 1831, Dakin and Bacon commenced a suit upon this agreement in covenant, setting forth the covenant of Williams and Seward, that they would not publish a paper, nor permit it to be printed in any building owned by them, nor aid or assist in the publishing, &c. and assigning for breach, that while the plaintiffs continued to be and were the publishers of the Utica Sentinel, to wit, on the 31st January, 1826, the defendants aided, assisted and were accessary to the printing and publishing, in the village of Utica, of a paper of a political character, called the Utica Intelligencer, and setting forth various other breaches. The plaintiffs claimed to recover the $3000 *as liquidated damages. The defendants craved oyer of the instrument declared on, set it forth, and put in a general demurrer; the plaintiffs joined in demurrer.
    A. J. Parker and J. A. Spencer, for the defendants,
    insisted that the covenants were dependant, and that the plaintiffs having omitted to aver performance on their part, the declaration was defective. That although the covenants on the part of the plaintiffs were not set forth in the declaration, the defendants having placed upon the record the instrument declared on by craving oyer, and setting it forth, and it thus appearing that there were covenants of which performance ought to have been alleged, they had a right to avail themselves of the objection under the demurrer which had been interposed by them. They relied upon Douglas, 689 ; 1 Chitty’s PI. 313 ; 1 Saund. 320.
    C. P. Kirkland, for the plaintiffs,
    contended that the covenants were independent. He cited 1 Saund. 320; Douglas, 689; 3 Wendell, 360; 5 Cowen, 509; 6 id. 296; 1 H. Black. 270.
   By the Court,

Nelson, J.

I am of opinion the demurrer is well taken. It is settled that where there is a condition precedent on the part of the plaintiff, performance, or that which is equivalent thereto, must be averred and proved, otherwise the action cannot be sustained ; and the defendant may plead the non-performance in bar of the action, or if it is entirely omitted in the declaration, or defectively stated, he may demur, as has been done in this case. And where the plaintiff is seeking to recover a penalty, or liquidated damages, which is the same thing, he is held strictly to an observance of this rule, and must show an exact and punctual performance on his part.

The case turns upon the question whether the covenant declared on is independent or not ? The defendants sell the printing press, types, patronage and good will of the establishment, to the plaintiffs ; covenanting not to establish another press within a certain time, in consideration of $3,500, to be secured *lo be paid as specified in the articles of agreement. The consideration on one side is the covenants to sell the press, &c. and not to establish another press; and on the other the covenant is to pay the $3,500, to be secured as aforesaid. Each covenant goes to the whole consideration on each side. For instance : the one upon which the plaintiffs have declared enters into and forms a part of the consideration for the payment of the $3,500; and the defendants must look to that fund, and that alone, as the consideration for this covenant. The same may be said of every other one in the articles of agreement on the part of the defendants ; and it would be extremely unjust, and unreasonable, therefore, to require them to perform all, or any of their covenants, or subject them to a heavy penalty on failure, if the plaintiffs have failed to fulfill on their part. If we construe .this covenant to be independent, such may be the result; for in such case the defendants cannot plead in bar the breach of the plaintiff’s covenant, and the plaintiffs may recover, though they have violated every covenant in the articles of agreement on their part. 1 Selw. 383.

As the covenant to pay the $3,500, and secure the same, constituted the consideration for each and all of the covenants of the defendants, and as there is nothing in the articles which, upon a sound construction, necessarily makes either of them independent, my conclusion is, that the plaintiffs, to sustain the action, must show a strict performance on their part, or that which is equivalent ; and that the fulfilment of the defendants’ covenant depends upon such performance, when the plaintiffs are seeking to enforce the same by action.

The case of the Duke of St. Albans v. Shore, 1 H. Black. 270, gives the true rule for this case, and it was taken from the case of Boon v. Eyre, decided by Lord Mansfield. It is this 1 “ Where matual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the others ; but where they go only to part, and the breach may be paid for in damages, there the defendant, has his remedy on the covenant broken, and shall not plead it as a condition precedent,” 1 H. Black. 273. n. 1 Selw. N. P. 385, n., and cases there cited. Serjeant Williams, in his note to Pordage v. Cole, 1 Saund. 320, says : “ where the mutual covenants *go to the whole consideration on both sides, they are mutual conditions and performance must be averred, that is, by the party bringing the action for a breach of any of them, and cites the Duke of St. Albans v. Shore. This is no doubt the true principle to be extracted from that case.

Now it is clear that the plaintiffs’ covenant, to secure the payment of $3500, as specified in the agreement, and those on the part of the defendants, are mutual, and go to the whole of the consideration on both or each side ; and if so, performance by the plaintiffs should have been averred, and a breach on their part would be fatal to the recovery within all the cases. See the cases cited above, and 8 T. R. 373; 4 East, 484, opinion of Lawrence, J.

This case is not to be confounded with those where there has been a part performance by the plaintiff, and the defendant seeks to avoid the performance of his covenants, by setting up a breach of the residue. In such cases, other considerations arise and control. For aught that appears in the pleadings, the covenants are wholly executory and future, and the question is, whether the plaintiffs can recover the $3000 liquidated damages for a breach of the defendant’s covenant, by which they bound themselves not to establish a press and publish a newspaper for a certain time, when they have omitted or refused to fulfil the covenant on their part, which constitutes the whole of the consideration for the defendants ; for, as before said, if the demurrer is not well taken, a plea of the non-performance on the part of the plaintiffs would be bad. If the plaintiffs are not bound to aver the fact in the declaration, the defendants cannot plead it in bar, and the consequence would be, that they must seek their remedy by suit to recover their damages, in case of a breach on the part of the plaintiffs. This would be an idle litigation, and we should have regretted if the law had compelled us to come to such a conclusion.

The case of the Duke of St. Albans v. Shore was as strong a case for the defendants as this one. The action was for the penalty of £500 in articles of agreement, by which the defendant was to purchase a certain farm of the plaintiff at the price of £2594, to be paid at Lady day, 24th March. The *plaintiff was to accept a conveyance of a farm from the defendants at £1820, in part payment. All timber trees, elms and willow trees which were then upon the above farms were to be fully valued by two appraisers, and the value to be paid by the respective purchasers. The plaintiff averred a readiness and ability to perform every thing on his part, and an offer to do so, alleging a breach on the part of the defendant. The defendant pleaded that before Lady day, the duke cut down divers, to wit, 500 timber trees, 500 elms, and 500 willow trees, whereby he disabled himself from performing the articles of agreement on his part, and for which reason the defendant declined executing the agreement on his part. There was a demurrer and joinder. The case was elaborately argued and well considered by the court, and Lord Loughborough put the case upon the distinction taken in Boon v. Eyre, which was believed a fair and sound one. He said the question was, whether the covenant of the plaintiff goes to the whole consideration of that which was to be done by the defendant ? That the duke clearly covenanted to convey an estate to the defendant, in which all the timber growing on the estate was necessarily included; and that if it was in any sort a consideration to the party purchasing to have the timber, the party selling ought not to be permitted to alter the estate by cutting down any part of it. That this was not an action of covenant, where one party has performed his part, but was brought for a penalty, on the other party refusing to execute a contract, and that to entitle him to a penalty, he ought punctually, exactly and literally to complete his part.

In the case under consideration, the covenant of the plaintiffs to secure the $3500, is the whole and only consideration of the covenant of the defendants, and performance is not averred in the declaration. The plaintiffs assume the right to recover the penalty or liquidated damages, whether they have completed the covenant on their part or not. Courts lean against construing covenants to be independent, unless such is the obvious intent of the parties ; and so they should, for reasons which have already appeared. The application of that rule is decisive of this case.

Judgment for defendants on demurrer, with leave to plaintiffs to amend on payment of costs.  