
    Whitall against Morse.
    Monday, December 19.
    A declaration for not fattening cattlie, stating an agreement by which the defendant cattle to be pastured and fattened at a certain price, that the plaintiff promised to pay, and that the agreement being assented to by both parties, the cattle were afterwards, to witon the day and year before mentioned, delivered to the defendant, who then and there promised to fatten and pasture them, is bad after verdict for want of stating, that the defendant’s promise was in consideration of the plaintiff’s promise, or of his delivering the cattle.
    It seems, it is bad also for want of stating, that the promises were at the same instant of time, a promise made in consideration of a previous promise of the other side being nudum pactum.
    
    A verdict cures the omission to state, that the cattle were left a sufficient length of time to fatten.
    In an action for breach of a promise made by the defendant, in consideration of a promise on the part of the plaintiff, it is not necessary to state performance by the plaintiff of the promise on his part.
    In Error..
    ERROR to the District Court of the city and county of Philadelphia, in an action on the case brought by Joseph Morse against J. Whitall.
    
    The only errors assigned in this Court were upon the declaration, which stated that, “ whereas heretofore, to wit, °n the 22d day of January, in the year of our Lord 1816, at tjje COunty aforesaid, a discourse was had, bv and between. J " the said Whitall, and the said Morse, touching, and concerning the pasturing and fattening a certain quantity of cat-tie belonging to and in the possession of the said Morse, and . * .. Trr, . it was agreed by and between the said Whitall and said Morse, in manner and form following, that is to say, that the said Morse should put into the hands and care of, and put on a certain island belonging to the said Whitall, caEed “ dlog Island,” a certain number of cattle, to wit, six-teen steers, and twenty-eight oxen, to be pastured, fed, and fattened by the said Whitall, at the rates or prices following, to wit, the said steers each at the rate or price of seventy cents per head for every week, and the said oxen at the rate or price of seventy-five cents per head for every week, and the said Morse then and there faithfully promised, that he ■would -well and truly pay, and satisfy unto the said Whitall the rates and prices as aforesaid agreed to be paid and allowed, for the pasturage of the said cattle, when and as often as the same should become due and payable; which said agreement having been allowed, agreed, and assented to by the said Whitall and the said Morse, the said cattle afterwards, to ■<wit, on the day and year last aforesaid, at the county aforesaid, were then and there put into the hands and care, and on the said island of the said Whitall, who then and there received and took into his possession and care the same. And the said Whitall did also, then and there agree to and with the said Morse, that he would well and safely keep the said cattle, and provide for the same, good, wholesome, and sufficient pasturage, and with the same pasturage would fatten the said cattle, and also then and there faithfully promised the said Morse, that he would well and faithfully perform and fulfil the said agreement in all things on his part to be performed and fulfilled; and the said Morse, in consideration thereof, afterwards, to wit, on the same day and year, at the county aforesaid, assumed upon himself, and then and there faithfully promised the said Whitall, that he would well and faithfully perform and fulfil the said agreement in all things on his part and behalf to be performed and fulfilled; and the said Morse in fact says, that after the making the aforesaid agreement and promises, to wit, on the 22d day of February, in the year of our Lord 1816, he then and there requested the said Whitall to permit him, the said Morse, to enter on the said island, to remove and take out of his (the said WhitalFs,) hands and care the said cattle. And the said Morse then and there offered to pay and satisfy, and did actually pay and satisfy his demand or price for the pasturage and feeding the said cattle, to wit, a large sum of one thousand dollars, which said offer and payment was then and there accompanied and followed by the declaration, that he, the said Whitall, did not perform and fulfil his promises and undertakings, by him in that behalf made ' in this, to wit, that the said cattle were not well fed, pastured, and fattened. And thereupon, and at the time of the payment, as aforesaid, the said Morse did, then and there declare, that he would look to the said Whitall for damages, by reason of his non-performance of his promise and agreement aforesaid. Yet the said Whitall well knowing the premises, but contriving and fraudulently intending to deceive,, injure, damnify, and aggrieve the said Morse in this, that the said Whitall did not, (although requested at and before the time of payment, as aforesaid,) nor would procure and provide for the said cattle, good and sufficient pasturage, insomuch, that the said cattle became poor, meagre, thin, of bad appearance and state, unfit for the market, by reason whereof the said cattle did not sell for and produce as much benefit and profit to the said Morse as they would have produced, had the said Whitall provided good and sufficient pasturage, in this, that the said cattle sold only for and produced the sum of fifty-two dollars per head, when, and whereas, the said cattle would otherwise, and ought to have brought the sum or price of sixty-six dollars. Whereby the said Morse has sustained great loss on account of the sale thereof, and by reason of the non-performance by the said Whitall of his promises and undertakings, so as aforesaid made and entered into by the said Whitall, and is otherwise greatly injured, damnified, and aggrieved, to the value of $3000, &c.”
    There was an additional count for money had and received.
    The following errors were assigned,
    1. The declaration avers, that the plaintiff delivered to the defendant certain cattle to be pastured, but no term is stated in which it was to be done; so that it does not appear, that the cattle were left a sufficient length of time to enable the defendant to fatten them.
    2. There is no averment, that the plaintiff had performed his part of the agreement.
    3. The declaration sets forth two agreements, and it does not appear for which of the two a breach is complained of.
    4. There is no consideration stated for the promises on the part of the defendant.
    
      These exceptions were argued by
    
      Kittera, for the plaintiff in error, and
    
      S. Levy, for the defendant in error.
    Tilghman C. J. gave no opinion, having been absent during the argument.
   The opinion of the Court was delivered by

Gibson J.

Notwithstanding our reluctance to reverse where there has been a trial on the merits, we are constrained to say this declaration cannot be sustained. There is no consideration for the promise stated. An agreement between the parties is set out, by which it appears the plaintiff was to deliver to the defendant a certain number of cattle to be pastured and fattened at a certain price : there is then an averment, that the plaintiff promised to pay. It is then further stated, that the agreement being assented to by bothj>arties, the cattle were “ afterwards, to wit, on the day and year before mentioned,” delivered to the defendant, who “ then and there” promised, that he would fatten and pasture them, and would well and truly perform the agreement on his part. Both the promise of the plaintiff and the circumstance of his having intrusted the defendant with the fattening and care of the cattle, were good considerations for a promise by the latter: but it should have been expressly laid, as made in consideration of one or both. Here the moving cause is not set forth, nothing being stated but the naked fact of the promise itself, without saying whether it were on any, or what consideration. Not only the contract itself, but the consideration, which is the material cause of it, should be distinctly set out, in order that the Court may judge of it. But even if the promise of the plaintiff had been expressed as the consideration, still the declaration would be ill, on account of the order in which the several parts of the transaction are stated to have happened: for mutual promises to give a ground of action, must be both made at the same instant of time; and a promise made in consideration of a previous promise by the other side, is nudum pactum. In Livingston v. Rogers, 1 Caines’ Rep. 584, where the declaration stated the agreement to deliver and receive certain shares of bank stock, and that in consideration, that the plaintiff had at the defendant’s request promised to perform his párt, the defendant often-wards, to wit, on the same day promised to perform his part, the subsequent promise was held to be nudum pactum. In the present instance, the promise is stated to have been made after the cattle were actually delivered to the defendant, in pursuance of the plaintiff’s previous promise, and the original agreement. But be this as it may, the omitting to state a consideration renders the promise void ; and consequently the defect is not cured by the verdict. It is otherwise with respect to the exception, that there is no averment, that the plaintiff permitted the cattle to remain with the defendant a sufficient length of time to enable him to fatten them : this is a mere circumstance collateral to the cause of action, and after verdict it will be intended to have been shewn at the trial. As to the objection, that it does not appear the plaintiff had performed his part of the agreement, I am of opinion is not necessary. Mutual promises to be performed at the same time are not mutual conditions, and the party suing need not aver performance. In an action,of assumpsit on an agreement, where in consideration that the plaintiff agreed to deliver the defendant a cow, he promised to give the plaintiff fifty shillings; it was held, the plaintiff need not aver the delivery of the cow, for it was promise for promise. Nicholas v. Rainbred, Hob. 88. The same principle is to be found in Martindale v. Fisher, 1 Wils. 88. Seers v. Fowler, 2 Johns. Rep. 272. Havens v. Bush, 2 Johns. Rep. 387. The remaining exception is not founded in fact, as there is in truth but one promise stated in the declaration. The judgment must be reversed.

S- Levy, for the defendant in error,

then moved for a v'e-' nire facias de novo: but the Court refused it.

Judgment reversed.  