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 £260. In covenant by C against D, the breach assigned was the nonpayment of the £260. 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 recompense 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 overruled. Campbell v. Jones, 6 T. R. 670. Hence, it appears that the reason of the decision in these and other similar cases, besides the inequality of the damages, seems to be, that where a person has received a part of the consideration for which he entered into the agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing anything for it. Therefore the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may have sustained in not having received the whole consideration. And hence, too, it seems, it must appear upon the record that the consideration was executed in part; as in Boone v. Eyre, above mentioned, the action was on a deed, whereby the plaintiff had conveyed to the defendant the equity of redemption of the plantation, for the defendant did not deny the plaintiff's title to convey it So in Campbell v. Jones, the plaintiff had transferred to the defendant a right to exercise the patent. Therefore, if an action be brought on a covenant or agreement contained in articles of agreement, or other executory contract where the whole is future, it seems necessary to aver performance in the declaration of the whole, or at least of part of that which the plaintiff has covenanted to do; or at least it must be admitted by the plea that he has performed it. As where A, by articles of agreement, in consideration of a sum of money, to be paid to representatives; * and such parties may sue on a contract, him by B on a certain day, covenants to convey to B on the same day a house, together with the fixtures and furniture therein, and that he was lawfully seised of the house, and possessed of the fixtures and furniture. In an action against B for the money, A must aver that he conveyed either the whole of the premises, or at least the house, to B; or it must be admitted by B in his plea that A did convey the house, but was not lawfully possessed of the furniture or fixtures." For further illustration of this principle, see Fothergill v. Walton, 2 J. B. Moore, 630; Stavers v. Curling, 8 Bing. N. C. 856; Franklin v. Miller, 4 A. ft E. 609; Fishmongers Co. v. Robertson, 6 Man. ft G. 131,198; Storer v. Gordon, 3 M. & S. 308; Ritchie v. Atkinson, 10 East, 295; Havelock v. Geddes, id. 555; Jonassohn v. Great Northern Railway Co. 10 Exch. 434, 28 Eng. L. & Eq. 481; Gould v. Webb, 4 Ellis & B. 933, 30 Eng. L. & Eq. 331; Mill-Dam Foundery v. Hovey, 21 Pick. 417; Tileston v. Newell. 18 Mass. 406; Bennet v. Pixley, 7 Johns. 249; Obermyer v. Nichols, 6 Binn. 169; Morrison v. Galloway, 2 Harris ft J. 461; Todd v. Summers, 2 Gratt. 167; Lewis v. Weldon, 8 Rand. 71; McCullough v. Cox, 6 Barb. 386; Payne v. Bettisworth, 2 A. K. Marsh. 427; Keenan v. Brown, 21 Vt. 86; Tompkins v. Elliot, 6 Wend. 406; Grant v. Johnson, 6 Barb. 161, 6 id. 337,1 Seld. 247; Pepper v. Haight, 20 Barb. 429. "If," says Shaw, C. J., in Knight v. The New England Worsted Co. 2 Cush. 286, "a party promise to build a house upon the land of another, and to dig a well on the premises, and to place a pump in it; and the owner of the land covenants seasonably to supply all materials and furnish a pump; it is very clear that the stipulation to furnish materials is dependent, and constitutes a condition; because the builder cannot perform on his part until he has the materials. So to put a pump into the well. But the stipulation to dig a well is not conditional, because it goes to a small part only of the consideration, and does not necessarily depend on a prior performance, on the part of the owner, and because a failure can be compensated in damages, and the remedy of the owner is by action on the contract." - 4. "But where the mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must be averred." Duke of St. Albans v. Shore, 1 H. Bl. 270; Graves v. Legg, 9 Exch. 709, 25 Eng. L. & Eq. 552; Grey v. Frier, 4 Clark & F. 565, 26 Eng L. & Eq. 27; Dakin v. Williams, 11 Wend. 67.-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." See the numerous cases cited by Serjeant Williams; and also Campbell v. Gittings, 10 Ohio, 347; Williams v. Healy, 8 Denio, 868; Gazley v. Price, 16 Johns. 267; Dunham v. Pettee, 4 Seld. 508; Lester v. Jewett, 1 Kern. 463. - Where a party agreed on the payment by another of certain sums of money to a third person, to assign certain certificates of sale of land, and it was held, that the covenants were independent, and that in a suit by the party bound to assign, a general averment of readiness on his part to perform was sufficient. Slocum v. Despard, 8 Wend. 616. See Northrup v. Northrup, 6 Cowen, 296; Champion v. White, 6 Cowen, 509; Robb v. Montgomery, 20 Johns. 16. But see Parker v. Parmele, 20 Johns. 130; Adams v. Williams, 2 Watts ft S. 227; Halloway v. Davis, Wright, 120. Justice would seem to require that such stipulations should be considered as dependent. Leonard v. Bates, 1 Blackf. 172, note; per Shaw, C. J., In Kane v. Hood, 13 Pick. 281.- 6. It may also be laid down as a rule, that stipulations or promises may be dependent from the nature of the acts to be performed, and the order in which they must necessarily precede and follow each other. "When the act of one party must necessarily precede any act of the other, as where one stipulates to manufacture an article from materials to be furnished by the other, and the other stipulates to furnish the materials, the act of furnishing the materials necessarily precedes the act of manufacturing, and will constitute a condition precedent without express words." Per Shaw, C. J., in Mill-Dam Foundery v. Hovey, 21 Pick. 439; Thomas v. Cadwallader, Willes. 496; Knight v. New England Worsted Co. 2 Cush. 286. In Combe v. Greene, 11 M. ft W. 480, the plaintiff demised a dwelling-house and premises to the defendant, and the defendant covenanted that he would expend £100 in improvements and additions to the dwelling-house, under the direction of some competent surveyor to be appointed by the plaintiff. Held, that the appointment of a surveyor was a condition precedent to the defendant's although not named therein. (s) Hence, as we have seen, executors, * though not named in a contract, are liable, so far as they have assets, for the breach of a contract which was broken in the lifetime of their testator. And if the contract was not broken in his lifetime, they must not break it, but will be held to its performance, unless this presumption is overcome by the nature of the contract; as where the thing to be done required the personal skill of the testator himself. (t) So, too, if several persons stipulate for the performance of any act, without words of severalty, the presumption of law is here that they intended to bind themselves jointly. (u) But this presumption also might be rebutted by the nature of the work to be done, if it were certain that separate things were to be done by separate parties, who could not join in the work. (v) It is also a legal presumption, that every grant carries with it whatever is essential to the use and enjoyment of the grant. (w) * But this rule applies perhaps more strongly to grants of real estate than to transfers of personal property. Thus, if land be granted to another, a right of way to the land will go with the grant. (x) But it has been held, where liability to expend the £100. In Miller v. Pittsburg & Cleveland R. R. Co. 40 Penn. St. 237, there was a subscription to the stock of a railroad company, on the express condition that the road should be located and constructed along a prescribed route. The road was so located, and the subscriber paid one or more instalments on his shares, but neglected to pay the balance as the calls were made. Before the construction was completed, the company suspended operations. An action was brought by the company for the balance of the subscription. Held, that the road haying been located as stipulated, though not completed, the company was entitled to recover. But see Macintosh v. The M. C. Railway Co. 14 M. & W. 648.