
    Salmon vs. Jenkins.
    The plainffj by an instrument purporting to be articles oí' a,- ■ greement between himself and the plaintiff, but signed and sealed'by the defendant alone, obligated himself to build a house . for the plaintiff by a certain day., and acknowledged'payment, and on failure to build the house within the time mentioned, defendant to forfeit $1200 to the plaintiff. Plaintiff brought ' his action of debt for the penalty — Held on- demurrer that the plaintiff should have averred that th,e defendant had neither built the house nor paid the $1200i The declaration contain- • ing no such averment, the plaintiff had no cause of action.
    If a contract be in the-disjunctive, the breach ought to be assigned as to both alternatives.
    Until there is a breach of both alternatives, there is no cause of action. , ’’ " .
    Where the penalty professes tobe a subsisting debt and the condition is added only by way Of defeasance,.the party may sue for the penalty, without noticing the condition; hut it is otherwise where there is no subsisting debt or duty, and the obligation depends on the performance or non performance of some particular act.
    If there is a contingency, it must be alleged to have happened.
    This was an action of debt on an instrument, under the hand and seal of the defendant Jenkins, commencing with the following words. “ Articles of agreement entered into this day between Owen Jenkins, of the one part, and W W. Coleman, of the other part Know ye that said Jenkins has bargained to build for the said Salmon, a -framed.house,” and here the instrument goes on to describe the building particularly, and the time when it was to be finished, and acknowledges the receipt of the consideration for which the house was to be built, and then adds, “ Provided said Jenkins should fail to complete the contract, in the specific time, he forfeits the sum of twelve hundred dollars, to be made of his goods and chattels, to the said Salmon,' his heirs, &c. given under my hand and seal,” &c; “ signed, sealed arid delivered,” by Jenkins only. The action was brought to recover the penalty of $1200. 'The defendant demurred generally, and his demurrer was overruled.
    
      
      Waddy Thompson, for the defendant,
    now brought the question up, and insisted that the action should have been covenant; or that if debt was the proper remedy, a breach of the condition was not set out in the declaration. The declaration was in the usual form of debt on bond.
    Earle, contra,
    contended that this was a penalty, for which debt was the proper remedy.
   Curia, per

Nott, J.

In order to maintain an action of debt, it is necessary to set'but in the declaration a sum certain. The plaintiff has done so in this case, and the declaration is .supported by the adduction of the obligation on which the action is brought. The demurrer, therefore, cannot be sustained on that ground. But on the other ground, the general rule of pleading is, that if the contract be in the disjunctive, the breach ought to be assigned, that the defendant did not do the one act or the other; as on a promise to deliver a horse by a particular day, or pay a sum of money, 1 Chitty, 329. And in de~ daring on a deed, whether in debt or covenant, the rule is the same, Do. 35 i.. Where the covenant is in the alternative, that is, where the covenantor undertakes fox-one of two things, bi-eaches should be assigned as to both. 1 Espinassc, 300; or in other words, the declaration must contain every averment necessaiy to shew that the plaintiff has a good cause of action. Where a person undertakes to do one of two things, the perfonnanee of one is the discharge of the other. The party, therefore, who would have the benefit of the breach of one part of the contract, must aver the non-performance of the other; for xxntil there is a breach of both, no cause of action arises. In an action upon a promise to re-deliver some rings to the plaintiff, in as good plight as they were delivered to defendant, or else pay him eighteen pounds in money, the plaintiff averred that the defendant had not re-delivered to him the rings, but omitted to say, nor paid him tbs eighteen pounds in money, and this was held to he nought, though after verdict; because, said the Court, it may well be that the eighteen pounds were paid, and then the plaintiff had no cause of action. Hardres, 320, Anon. I do not perceive the distinction between that case and the one now under consideration. The defendant undertook. to build a house for plaintiff, or on failure thereof, to pay him twelve hundred dollars. The breach assigned is, that he has not paid the twelve hundred dollars, with out any averment that he has not performed the work. But it may be that the defendant has performed the work, and until the contrary is known, the plaintiff has no cause of action. The case in hand is to he sure an action on the ease for a breach of promise, but it has already been observed, that the principle is the same, whatever may he the form of action. See also Pordage vs. Cole, 1 Saunders, 320, Lowe v. Peer. 4 Burr, 2225, one of which is an action of covenant, and the other debt. It is said that when a person is bound in a penalty, the party to whom he is bound may sue for the penalty, without noticing the condition. And that is true when the penalty professes to be a subsisting debt, and the condition is added by way of defeasance; but it is otherwise where there is no subsisting debt or duty, and the obligation depends upon the performance or non-performance of some particular act. The distinction is between a present cause of action, and one which depends upon the happening of some contingency. In the first, the plaintiff may simply declare for the money — in the other he must al-ledge that the contingency has happened. In the present case the defendant does not acknowledge any subsisting debt. His liability is to arise, if at all, on a future contingent event, that is to say, his neglecting to build the House.- The plaintiff, therefore, has shewn no cause of action, as he has not alleged the non-perform • anee of that part of the contract. It is in the nature of a condition precedent, the performance of which must always be averred. Pordage vs. Cole, 1 Saunders, 320, note (2) and whether it be something to be performed by the plaintiff or defendant, if it be the sine qua non of the action, the averment of performance on one side, and the non-performance on the other, are equally necessary. I am of opinion the demurrer ought to have 'been sustained, and the decision must therefore be reversed.

Colcock, J.

(dissenting.) I think this was a penalty, and that it is not important whether it was in the first or last part of the deed, and therefore the suit was properly brought, and the merits might have been developed by a proper course of pleading on the part of the defendant. Judgment reversed.  