This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
When the simple contract was recognized by the king's courts, the rules which applied to sealed contracts were,.in many cases, carried over to simple contracts by way of analogy; and among them the rule that covenants were prima facie independent was applied to simple contracts,1 even where the covenants formed each the consideration for the other.2 A simple contract whereby A agreed to sell goods to B at a certain price, was held to be made up of independent covenants, so that the failure of either to perform would not be a defense to the other.3 This result was justified by holding that the consideration was the promise and not the performance, and that accordingly failure to perform did not affect the consideration.4 A simple contract, by which A agreed to deliver B's bill to B, and B agreed to furnish two sureties for the debt, was held to be made up of independent covenants, so that A could bring an action against B without delivering such bill.5 The fact that the contract recited that one promise was in consideration of the other, did not make the covenants dependent.6 It was not necessary for the plaintiff to allege that he was ready to perform.7 A simple promise by A to convey land to B and by B "in consideration thereof," to pay a certain amount, was held to be made up of independent covenants. 8 Under a simple contract by A to surrender a copy-hold to B, and by B to pay A, in consideration of which each assumed to perform, was held to be made up of independent covenants, so that A could recover without performing.9 This rule was invoked in some cased in which the same result could have been reached on the theory that the covenants were dependent.10 Under a contract by which A agreed to deliver to B all the iron which A produced, at a certain price per ton, it was held that A could recover for all the iron which he had delivered without showing that he had delivered all the iron which he had produced.11
7 Blackwell v. Nash, 1 Strange 635.
1 Gower v Capper, Cro Eliz 543; Bcttsworth v Campion, Yelv 133; Thorpes Case, March 75; Gibbons v. Prewd, Hardres 102; Beany v Turner, 1 Lev. 203; Nichols v. Raynbred, Ho-bart 8Sb: Thorpe v. Thorpe, 12 Mod 455; Rolles v. Osborn, 1 Brownl. & Gold. 00.
2 Nichols v. Raynbred, Hob. 88b; Cower v. Capper, Cro. Eliz 543; Bettis-worth v. Campion, Yelv. 133; Thorpe's Case, March 75; Gibbons v. Prewd, Hardrea 102; Beany v. Turner, 1 Ley.
3 Nichols v Raynbred, Hob 88b.
4 Cower v Capper, Cro. Eliz 543; Beany v Turner, 1 Lev. 293
*** being mutual promised, there needs no averment at all of the performance," and accordingly, "ill averment * * * shall not hurt." Beany v. Turner, 1 Lev. 293.
5 Gower v. Capper, Cro. Eliz. 543.
6 Bettisworth v. Campion, Yelv. 133; Gibbons v. Prewd, Hardres 102.
7 Thorpe's Case, March 75.
8 Gibbons v. Prewd, Hardres 102.