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4. OF THE PERFORMANCE OF A CONTRACT
In this part of the work it will only be necessary to bring to the reader's attention some of the leading principles laid down for the due observance of a contract. On this subject, it is necessary in all cases to consider first, whether the contract or agreement contains mutual and independent agreements; for if it does, then each party is entitled to claim from the other a performance of the contract, or to recover damages for the non-performance; and it will be no legal ground of excuse, to allege that the party claiming has himself been guilty of a breach of the contract. Or secondly, whether the acts to be done on one side are to precede the acts to be performed on the other, and are, what is technically called, conditions precedent and dependent: if they are precedent conditions, they must be first performed. Thirdly, whether or not the agreements be mutual, and the acts agreed to be done are to be performed at the same time: if in the affirmative, then if one of the parties be ready at the agreed time, and offers to perform his part of the contract, and the other is not ready, he may maintain an action for such default, although it may be doubtful which of them is obliged to perform the first act.
In mutual agreements where the time of performance is clearly expressed, as if a horse is sold on the 1st of May, to be paid for on the 1st of June, the parties are of course concluded by the terms so expressed. But where the dependence or independence of the respective engagements is only to be collected from the evident sense and meaning of the parties, the rule is, that however the covenants or promises may be transposed, their precedency must depend upon the order of time in which the intent of the transaction requires their performance. (i) The learned editor of Pothier on Contracts, (k) in considering these general rules, has illustrated them by the following familiar examples : first, a landlord and tenant enter into reciprocal engagements, the tenant agrees to pay the rent, to plant a certain number of trees, to repair the fences; the landlord agrees to repair the house, to erect a barn, to pay the taxes. If the tenant brings an action against the landlord for not building the barn, it is no answer that the tenant has not planted the trees. If the landlord brings an action for the rent, the tenant cannot insist that the house is out of repair. Secondly, If a carrier engages to convey a bale of goods for a certain sum, he cannot demand the money until he has brought the goods to the place appointed. Thirdly, If a horse is sold for 201. to be paid on delivery, one
(i) Vid. Doug. Rep. 690, 691,
(k) Vol. 2. p.41.
party cannot demand the horse without paying the money, nor the other the money without delivering the horse. And it is observed by Mr. Serjeant Williams, in a note to the case of Pordage v. Cole, (k) “ that almost alb the old cases, and many of the modern ones on this subject, are decided upon distinctions so nice and technical, that it is very difficult, if not impracticable, to deduce from them any certain rule or principle by which it can be ascertained what covenants are independent, and what dependent. Thus, if A. covenant with B. to serve him for a year, and B. covenant with A. to pay him 10l.; it is held, that these are independent covenants; and A. may maintain an action against B. for the money before any service, but if B. had covenanted to pay him 101.for his services, these words make the service a condition precedent; and A. cannot enforce payment of the money until he has performed the service. So, where A. covenants with B. to marry his daughter, and B. covenants to convey an estate to A. and the daughter in special tail, it is said, that though A. marry another woman, or the daughter another man, still A. may have an action against B. on the covenant; but if B. had covenanted to convey the estate for the cause aforesaid, the marriage is a condition precedent, and no action will lie until it be solemnized. (1) Also where A. in consideration of 101. promised to deliver to B. all the books of the law, it has been said that B. may bring an action against A. for the books before any payment; but if A. in consideration that B. will pay him 101. will deliver to him all the books of the law, B. cannot bring an action for the books before he has paid the money. (m) So, where B. covenanted with C., his copyholder, to assure to him and his heirs the freehold and inheritance of his copyhold, and C. in consideration of the same performed covenanted to
such a sum, it was adjudged that this was a condition precedent, and B. must make the assurance before he is entitled to the money ; but if the words had been in consideration of the said covenant to be performed, B. might bring an action for the money before he made the assurance. (n)
And lastly, where articles of agreement were made between A. and B., and a covenant by A., that for the consideration thereafter expressed, he should convey certain lands to B. in fee, and B., on his part, for the consideration aforesaid, covenanted to pay a sum of money to A., it was held, that these were independent covenants, and A. might bring an action for the money, before any conveyance of the lands. (o) The general rule to be deduced from all the cases on this subject seems to be, that where there are several covenants, promises, or agreements, which are independent of each other, one party may bring an action against the
12 Mod. 460
(k) 1 Saund. 320. n. 4.
(1) Bro. Covenant 22. Hob. 106.
(m) i Rol. Rep. 125.
(n) 3 Leon. 219.
(o) i Rol. Abr. 415. pl. 8. 1 Ld. Raym. 665, 6. i Lutw. 251,2.
other for a breach of his covenants, &c., without shewing a performance of the covenants made on the part of the plaintiff; and it is no excuse for the defendant to allege in his plea a breach of the covenants on the part of the plaintiff. But where the covenants, &c, are dependent, it is necessary for the plaintiff to aver and prove a performance of the covenants, &c. on his part, to entitle him to an action for the breach of the covenants on the part of the defendant. The difficulty lies in the application of this rule to the particular case. It is justly observed, that covenants, &c. are to be construed to be either dependent or independent of each other, according to the intention and meaning of the parties, and the good sense of the case, and technical words should give way to such intention.” (p. And the learned editor further observes, " that in order to discover that intention, a few rules will be found useful for that purpose ; and ist, 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
for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent. And so it is where no time is fixed for performance of that which is the consideration of the money or other act. (9) But 2d, 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. (r) 3d, Where a covenant goes only to part of the consideration 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 shewing performance. As where A. by deed conveyed to B. the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of 5001., and an annuity of 1601. for life, and covenanted that he had a good title to the plantation, was lawfully possessed of the negroes, and B. should quietly enjoy. And B. covenanted that A. well and truly performing all and every thing therein contained on his part to be performed, he would pay the annuity. In an action by A. against B. on this covenant, the breach assigned was the nonpayment of the annuity ; plea, that A. was not at the time legally possessed of the negroes on the plantation, and so had not a good title to convey. The Court of King's Bench held the plea to be ill, and added, that if such plea were to be allowed, any one negro, not being the property of A.,
(p) 1 T.R. 645. 6 T.R. 668. 571, 7 T. (r) i Salk. 171. 12 Mod. 462. i Lutw. R. 130.
() Dyer. 76. a. 1 Saund. 320. iLd. Raym. 665. 2 H. Bla. 589. 6 T. R. 572.
would bar the action. (s) The whole consideration of the covenant on the part of B. (the purchaser) to pay the money, was the conveyance by A., the seller, to him of the equity of redemption of the plantation, and also the stock of negroes upon it. The excuse for nonpayment of the money was, that A. had broke his covenant as to part of the consideration, namely, the stock of negroes. But as it appeared that A. had conveyed the equity of redemption to B., and so had, in part, executed his covenant, it would be unreasonable that B. should keep the plantation and yet refuse payment, because A. had not a good title to the negroes. (t) Besides, the damages sustained by the parties would be ur equal, if A.'s covenant was held to be a condition precedent; (x) for A. on the one side would lose the consideration money of the sale, but B.'s damage on the other might consist, perhaps, in the loss only of a few negroes. So, where it was agreed between C. and D. that in consideration of 5001. C. should teach D. the art of bleaching materials for making paper, and permit him, during the continuance of a patent which C. had obtained for that purpose, to bleach such materials according to the specification; and C. in consideration of the sum of 2501. paid, and of the further sum of 250l. to be paid by D. to him, covenanted that he would with all possible expedition teach D. the method of bleaching such materials; and D. covenanted that he would on or before the 24th February 1794, or sooner, in case C. should before that time have taught him the bleaching of such materials, pay to C. the further sum of 250l. In covenant by C. against D. the breach assigned was the nonpayment of the 2501. Demurrer, that it was not averred that C. had taught D. the method of bleaching such materials; but it was held by the Court, that the whole consideration of the agreement being, that C. should permit D. to bleach materials, as well as teach him the method of doing it, the covenant by C. to teach formed but part of the consideration, for a breach of which D. might recover a recompence in damages : and C. having in part executed his agreement by transferring to D. a right to exercise the patent, he ought not to keep that right without paying the remainder of the consideration, because he may have sustained some damage by D.'s not having instructed him ; and the demurrer was over-ruled. (v) 4th. But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred. (w) 5th. 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 shewing 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."
(s) Boone v. Eyre, 1 H. Bl. 273. n. a. (v) 6 T. R. 570.
OF THE STAMPING OF CONTRACTS AND AGREEMENTS.
ONE source of the revenue of this country arises from the imposition
of stamp duties payable upon contracts and agreements, bills of exchange and promissory notes, law proceedings, and a multiplicity of other written instruments. These duties having been so much varied and altered at different periods, according to the exigencies of the state, became extremely complicated ; and it being difficult to ascertain the precise duty payable on each particular instrument, the legislature deemed it expedient to consolidate the stamp duties under one general act of parliament; and accordingly, the statute 44 Geo. 3. c.98.was passed, the preamble of which recites, “whereas the several rates and duties upon stamped vellum, parchment, and paper, and upon other articles and things under the care of the commissioners for managing the said duties, are become very numerous, intricate, and complicated, and it will tend to give facility to business, and contribute materially to the public benefit, to consolidate and simplify the same;" and the several duties were by that act all consolidated under different schedules, and they took effect from and after the 10th October 1804. But the duties imposed by that statute were afterwards varied and altered by several other acts of parliament; and another general stamp act, viz. the 55 Geo. 3. c. 184. passed, and this took effect on the 1st Sept. 1815, and it is now in force; and such of the duties imposed by it, so far as they relate to the subject-matter of the present work, are contained in schedule, Part the First, and are as follow, viz.
Agreement, or any minute or memorandum of an agreement, made in England under hand only, or made in Scotland without any clause of registration, (and not otherwise charged in this schedule, nor expressly exempted from all stamp duty,) where the matter thereof shall be of the value of 201. or upwards, whether the same shall be only evidence of a contract, or obligatory upon the parties from its being a written instrument, together with every schedule, receipt, or other matter put or endorsed thereon or annexed thereto;
£. s. d. Where the same shall not contain more than 1080 words
(being the amount of fifteen common law folios, or sheets of seventy-two words each)
1 0 0 And where the same shall contain more than 1080 words 1 15 0