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in the argument of the case before him. The plaintiff was there allowed to recover the price of an estate in spite of his failure to allege that he had conveyed or tendered the land. It was said that the defendant had his action of covenant against the plaintiff to recover the price, so that each party had a mutual remedy against the other. The decision was entirely in line with the early authorities on mutual promises, but might be supposed to have been completely overruled by the later decisions to which allusion has been made. Serjeant Williams, however, in his edition of Saunders' Reports of 1798, annexed as a note to Pordage v. Cole, a statement of the principles, as he conceived them, governing the dependency of mutual promises. These rules remained for years the recognized statement of the law and acquired by their adoption by the courts, judicial authority. The curious consequence also followed that Pordage v. Cole itself was brought by the note attached to it, to the recollection of lawyers who had forgotten the numerous other overruled cases going on the same principle, and was galvanized into new life.22 But if it still can be regarded as having any authority in England, it has none in the United States.

§ 820. Serjeant Williams' Rules.

Serjeant Williams' rules were as follows:23

1. If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a con

court does not mention this as a reason for its decision.

22 In Mattock v. Kinglake, 10 Ad. & E. 50, Patteson, J., said: "Pordage v. Cole is directly in point. We must overrule if we decide in favor of the defendant." And in Simpson v. Crippen, L. R. 8 Q. B. 14, Blackburn, J. said: "I prefer to follow Pordage v.

Cole." See also Sibthorp v. Brunel,

3 Exch. 826. In view of the fact that
Pordage v. Cole was one of the de-
cisions which, as Lord Kenyon rightly
said, "outraged common sense," such
remarks are extraordinary. Cf. Mars-
den v. Moore, 4 H. & N. 500; Bankart
,v. Bowers, L. R. 1 C. P. 484.
23 1 Wm. Saund. 3191.

dition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act. 2. But when a day is appointed for the payment of money, &c., and the day is to happen after the thing which is the consideration of the money, &c., is to be performed, no action can be maintained for the money, &c., before performance. 3. Where a covenant goes only to part of the considertion on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. 4. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. 5. Where two acts are to be done at the same time, as, where A covenants to convey an estate to B on such a day, and in consideration thereof B covenants to pay A a sum of money on the same day, neither can maintain an action without showing performance of, or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale."

§ 821. Comment on Serjeant Williams' first two Rules.

Serjeant Williams' rules were substantially adopted from prior judicial statements. The first two rules are borrowed from Lord Holt's opinion in Thorp v. Thorp 24 with the change that Serjeant Williams inserts a sentence at the end of his first rule which finds no place in Lord Holt's judgment. Serjeant Williams also inserts in his first rule the words, "or part of it," and the words, "or may happen." The effect of these insertions is that if any part of the performance on one side is to precede performance on the other, a right of action will arise, not only for any failure to render such part performance, but for failure to perform the whole covenant, in spite of the default of the other covenantor. Also if by the terms of the contract it is possible that the whole or part of the performance on one side may be due before performance on the other, the covenant is absolute and independent, though

24 12 Mod. 455. See supra, § 671.

it turns out subsequently that performance of this covenant does not fall due until after performance by the other party. Thus if A covenants to sell goods to B on their arrival from abroad, and B covenants to pay $1000 on March 1st as the price of them, the obligation to transfer the goods would be absolute, because they might arrive prior to March 1st, and even though they did not arrive until after that date, the seller would be bound to transfer them without getting the price. This modification of Lord Holt's rule was undoubtedly made to account for the decision in Pordage v. Cole itself, where such were the facts, though it does not appear that the court regarded the possibility that performance on one side might or might not become due before performance on the other as affecting the result. Likewise Serjeant Williams says if no time is fixed in a contract for the performance of the promised act, the promises are independent. This rule still occasionally finds judicial support, 25 though a simple concrete case would

25 In Busch v. Stromberg-Carlson Telephone Mfg. Co., 217 Fed. 328, 328, 133 C. C. A. 244, subscribers agreed to take and pay for bonds of a corporation at times specified in the underwriting, if not sold to others before that time. Just before the defendant signed the underwriting, the corporation, at the demand of the defendant and other St. Louis directors, agreed to build a plant at St. Louis costing about $1,000,000, and the defendant thereupon raised his subscription from $50,000 to $100,000. This agreement fixed no time for the erection of the plant, and was neither embodied nor referred to in the underwriting and the plant was never built. The court said: "Where acts are stipulated to be done at specified times by one covenant of a contract, and acts are stipulated to be done without fixing any time for their performance by another covenant thereof, the latter covenant does not condition the former, is independent of it, and a breach of the latter, while it may raise a cause of action, is no defence to an action for a

breach of the former. The same rule generally governs where acts are stipulated by one covenant to be done at different times from those fixed by another covenant for the performance of other acts. In Loud v. Pomona Land & Water Co., 153 U. S. 564, 578, 14 Sup. Ct. 928, 932, 38 L. Ed. 822, the Supreme Court said: In the learned note of Serjeant Williams to the early case of Pordage v. Cole, 1 Saund. 320a, it is said that if a day be appointed for payment of money, or part of it, etc.

And this is still the law and the reason of such a case and of this case. Goldsborough v. Orr, 8 Wheat. 217, 223, 5 L. Ed. 600; Emigrant Co. v. County of Adams, 100 U. S. 61, 71, 25 L. Ed. 563; Red Wing Hotel Co. v. Friedrich, 26 Minn. 112, 115, 1 N. W. 827; Clark on Contracts (1894), pages 655, 656. The court below rightly held that the contract of the telephone company to build the plant and its breach was no defence to the action against Mr. Busch for his breach of his agreement to take and pay for the

show how far removed it is from modern ideas. If one makes a contract with his tailor to make a suit of clothes and promises to pay on January 1, as no time is fixed for the making of the clothes, the promises are independent, and the tailor may sue for the money though he never has made the clothes and a reasonable time for doing so has elapsed. So said Serjeant Williams, and such may have been the law once, but it is not now.26 Serjeant Williams' second rule follows as a necessary corollary from his first.

§ 822. Comment on Serjeant Williams' Rules 3, 4, and 5.

mean.

The third and fourth rules were taken from Lord Mansfield's opinion in Boone v. Eyre." It is not perfectly clear what they Two entirely different situations are suggested by them. The first situation, and that at which these rules are apparently aimed, are where A covenants to do two or more things, and B in consideration thereof covenants to do one thing. Here Serjeant Williams says that breach of one of A's covenants, since it goes to but part of the consideration (and may be paid for in damages) will not preclude recovery on B's covenant. But it is obvious that the propriety of this result will depend on the comparative importance of the covenant

bonds at the times he promised to do so." Whatever may be said of the result reached in this case, the reason given (though that of Serjeant Williams) cannot be supported. It would be equally applicable if the defendant's payment was the price of the building instead of the price of bonds, yet a court would surely not compel payment for a building which was never built and a reasonable time for building which had elapsed merely because no time was fixed in the contract for the building.

28 "As a general rule, it may be sound law, that a covenant on the part of the vendee, to pay the purchase money at a particular date, and of the vendor to convey at some indefinite period, as for instance, after a patent is obtained from the Govern

ment, are not dependent upon each other, and that the purchaser must pay the money when due, and rely upon the covenant of the agreement for his remedy. But can this be the rule where it manifestly appears that there is a valid, outstanding title, superior to the claim of the vendor, or which, as long as it is permitted to stand, would prevent the vendor from procuring a patent for his land, and deprive him of the power to convey according to the conditions of his bond? This would involve that circuity of action and multiplicity of suits, so much discountenanced by our laws, and so repugnant to the genuine and fundamental principles of our system of procedure." Taul v. Bradford, 20 Tex. 261, 263.

27 1 Hen. Bl. 273n.

which A has broken and the covenant which he has not broken. If A covenants to give a horse and bridle to B, and B covenants to pay $500 it may be just to allow A to recover on B's covenant though he has not transferred the bridle as he agreed, but to allow him to recover if he were in default on his covenant to transfer the horse is a result that will not commend itself. Of this rule Pollock, C. B., said in a later case: 28 "It cannot be intended to apply to every case in which a covenant by the plaintiff forms only a part of the consideration, and the residue of the consideration has been had by the defendant. That residue must be the substantial part of the contract; and if, in the case of Boone v. Eyre, two or three negroes had been accepted and the equity of redemption not conveyed, we do not apprehend that the plaintiff could have recovered the whole stipulated price, and left the defendant to recover damages for the non-conveyance of it." 29

The other situation suggested by these rules of Serjeant Williams is where A has partly performed a single covenant for a continuing performance, but after such part performance is in default. Whether he should nevertheless recover here, should depend on the extent of his part performance, and the materiality of the breach which he has committed.30 The fourth rule is borrowed from Lord Mansfield's opinion in Kingston v. Preston, 31 and is an accurate statement of the law of concurrent conditions.

§ 823. Criticism of the general theory of Serjeant Williams' Rules.

Serjeant Williams was but following judicial authority when he dealt with the question of dependency in mutual

28 Ellen v. Topp, 6 Exch. 424.

29 This extract was quoted with approval by Lord Collins in General Billposting Company, Ltd., v. Atkinson, [1909] A. C. 118, 121. See also Rosenthal Paper Co. v. National &c. Paper Co., 226 N. Y. 313, 123 N. E. 766.

30 Thus Lord Ellenborough said in Davidson v. Gwynne, 12 East, 381, "The principle laid down in Boone v.

Eyre has been recognized in all the subsequent cases, that unless the nonperformance alleged in breach of the contract goes to the whole root and consideration of it, the covenant broken is not to be considered as a condition precedent, but as a distinct covenant, for the breach of which the party injured may be compensated in damages."

31

12 Doug. 689, Lofft. 194.

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