Sec 581

In executory agreements for the sale of goods, the vendor's obligation to deliver and purchaser's obligation to pay, are ordinarily concurrent,6 and each constitutes a condition precedent, which cannot be enforced by either party without showing on his part performance, or offer to perform, or prevention by the other side coupled with readiness and willingness on his part to perform.7 Thus in an English case more subdivided, and, in consequence, every subdivision becomes more dependent upon others, and upon the strict and honest performance of the portion of the work they contribute towards the final product. And thus it is becoming more and more important, as this interdependence of different branches of trade increases, that contracts of this sort should be carried out according to their spirit and object, without regard to the mere technicalities, and we might well say quibbles, of the older decisions."

In executory agreements delivery and payment ordinarily concurrent.

To the same general effect are Rey-bold v. Voorhees, 30 Penn. St. 116, and Shinn v. Bodine, 60 Penn. St. 182; though see remarks of Williams, J., Lucesco Oil Co. v. Brewer, 66 Penn. St. 351; Morgan v. McKee, 77 Penn. St. 229.

1 Bloomer v. Bernstein, L. R. 9 C. P. 588; see Withers v. Reynolds, 2 B. & Ad. 882.

2 Infra, sec 603, 885 a, 901; Chalmers ex parte, L. R. 8 Ch. 289.

3 Freeth v. Burr, L. R. 9 C. P. 208.

4 Scott v. Coal Co., 89 Penn. St. 231; see infra, sec 899, 1009; and see as to remedy, supra, sec 282 et seq.

5 Reybold v. Voorhees, 30 Penn. St. 116.

6 See infra, sec 584.

7 Supra, sec 558; Benj. on Sales, 3d Am. ed. sec 592; Waterhouse v. Skinner, 2 B. & P. 447; Rawson v. Johnson, 1 East, 203; Jackson v. Allaway, 6 M. & G. 942; Warren v. Wheeler, 21 Me. 484; Jones v. Marsh, 22 Vt. 144; Lord v. Belknap, 1 Cush. 279; Smith v. Lewis, 26 Conn. 118; Gazley v. Price, 16 Johns. 267; Williams v. Healey, 3 taken by Mr. Benjamin to illustrate this principle,1 there was a mutual agreement for cross-sales, as follows: "Bought of A. & Co. about thirty packs of Cheviot fleeces, and agreed to take the undermentioned noils (coarse woollen cloths so-called); also agreed to draw for 250l. on account, at three months, 16 packs No. 5 noils, at 10 3/4d.; 8 packs No. 4 noils, at 12d." The defendant had bargained with the plaintiff for the purchase of the fleeces, and had agreed to sell him the noils. The noils having risen in price, the defendant refused to deliver them. The plaintiff, in his action, averred independent agreements, but he was nonsuited, all the judges holding that he should have alleged an offer to deliver the fleeces, which was a condition precedent to his right to claim the noils. - When land is sold, the conveyance of the title, and payment for it, are usually concurrent acts, one dependent on the other. There can therefore be no suit for the purchase money in such case, without a conveyance of title; there can be no suit for the land without a payment or tender of purchase money.2 The vendor, it is true, on tendering conveyance, may sustain a bill for specific performance; or the purchaser may sustain a bill for specific performance on tendering the purchase money.3 But at law, while either party may claim damages for the other's default, neither party can sue the other on his direct promise without proving that he has done his part; and hence if the purchaser refuses to take title, while liable to a suit for damages, or to a bill for specific performance, he is not liable at law on his promise to pay the purchase money.4 It is otherwise, however, as we have seen, when the conveyance and the payment are not to be concurrent.5 - It may be, for instance, that the payment is fixed on a particular day: while it is not.

Denio, 363; Campbell v. Gittings, 19 Ohio, 347; Hough v. Rawson, 172 111. 588; Cole v. Hester, 9 Ired. 23; Grandy v. McCleese, 2 Jones, N. C. 142. As to mode of performance, see infra, sec 869 et seq.; as to tender, see infra, sec 970 et seq.

1 Atkinson v. Smith, 14 M. & W. 695.

2 Supra, sec 558; Leake, 2d ed. 612; Heard v. Wadham, 1 East, 619; Laird v. Pirn, 7 M. & W. 474; Manby v. Cremonini, 6 Ex. 808; Marsden v. Moore, 4 H. & N. 500; Bankart v. Bowers, L. R. 1 C. P. 484; Smith v. R. R., 6 Allen, 262; Phillips v. Soule, 9 Gray, 233; Williams v. Healey, 3 Denio, 363; Campbell v. Gittings, 19 Ohio, 347.

3 Bispham's Eq. sec 370 et seq.

4 Laird v. Pirn, 7 M. & W. 474.

5 Supra, sec 545 et seq.

practicable, in consequence of the absence or temporary disability of one or more of the parties, to have the conveyance ready on that day. In such case the conveyance is not a condition precedent to the payment; and to enable the vendor to recover, all that is necessary is for him to show that he took all the steps obligatory on him towards tendering the conveyance.1 And the rule, also, does not apply in those cases in which from the nature of the transaction delivery and payment are not concurrent duties.2