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.
The actual operation of this rule, and possibly the fact that the courts were beginning to feel that justice could better be done by treating the covenants as dependent and by forcing the jury to conform to definite rules as to the measure of damages, led to a dislike of the rule that covenants were prima facie independent, and caused the courts to evade it in cases in which they once would either have felt that the rule was a just one, or that they were bound by it.1 The fact that the contract showed that one promise was made "for" or "in consideration of" the other, was held to be sufficient to show that the covenants were dependent.2 The fact that the instrument was a deed poll, and that one of the parties would be left without remedy if the covenants were independent, was fixed upon as ground for holding that the covenants were dependent.3
It was finally said that the rule was an absolute one which would not have been adopted if it had been a new question, but which was too thoroughly settled to be attacked.4
9 Beany v. Turner, 1 Lev. 293.
10 Bettisworth v Campion, Yelv. 133.
11 Bettisworth v Campion, Yelv. 133
1 Thorpe v Thorpe, 12 Mod. 455; Peeters v. Opie, 2 Wms Saunders 350 [also reported in 1 Vent. 177, 214]; Lock v. Wright, 1 Strange 569.
2 Thorpe v. Thorpe, 12 Mod 455; Peeters v Cpie, 2 Wms. Saunders 350 [also reported in 1 Vent 177, 214].
3 Lock v. Wright, 1 Strange 569.
4 Thomas v. Cadwallader, Willes 496. "* * * I expressed my dislike of those cases, though they are too many to be now overruled, where it Is determined that the breach of one covenant, though plainly relative to the other, can not be pleaded in bar to an action brought for the breach of the other, but the other party must be left to bring his action for the breach of the other; as where there are two covenants in a deed, the one for repairing and the other for finding timber for the reparations; this notion plainly tending to make two actions instead. of one, and to a circuity of action and multiplying actions, both which the law so much abhors. If, therefore, this were a new point, I should be inclined to be of opinion that, though where there are mutual covenants relative to one another in the same deed a plaintiff is not obliged in an action brought for the breach of them to aver the performance of the covenant which is to be performed on his part, yet that the defendant in such action may in his plea insist on the non-performance of the covenant to be performed on the part of the plaintiff; but this has been so often determined otherwise that it is too late now to alter the law in this respect. But where words make a condition precedent or a qualification of a covenant, as the present case plainly is, all the cases agree that the plaintiff in his declaration must aver the performance of such condition or qualification." Thomas v. Cadwallader, Willes 496.
Following this expression of opinion, the courts found little trouble in ignoring the original rule and in holding that covenants were prima facie dependent,5 even if they were found in a contract under seal.6 It was said that if one covenant was in consideration of the other, they were to be regarded as concurrent unless the contract fixed a time for the performance of each which prevented the courts from treating them as concurrent.7 Under a contract under seal, by which A agrees to convey realty to B on or before a certain day and B agrees to pay A on or before such day, such covenants were held to be concurrent.8 Indeed the courts almost immediately began to assume that covenants were prima facie concurrent, and to treat them accordingly.9 The case in which the modern rule that covenants are prima facie dependent was first laid down,10 has frequently been cited and quoted;11 and it has become thoroughly established at modern law that covenants are ' to be regarded as dependent if possible, since such rule will give the most fair and just results.12 The presumption that covenants are dependent seems to be quite strong, and not to be overcome by language which might suggest that the parties intended that the covenants should be independent.13
'The old cases cited by the plaintiff's counsel have been accurately stated; but the determinations in them outrage common sense." Goodisson v. Nunn, 4 T. R. 761.
5 Kingston v. Preston, 2 Dougl. 689; Callonel v. Briggs, 1 Salk. 112.
6 Kingston v. Preston, 2 Dougl. 689. 7 Callonel v. Briggs, 1 Salk. 112.
8 Glazebrook v. Woodrow, 8 T. R. 866.
9 Jones v. Barkley, 2 Dougl. 684.
10 Kingston v. Preston, 2 Dougl. 689.
11 Kingston v. Preston is quoted in full in Jones v. Barkley, 2 Dougl. 684.
By one style or the other it is frequently cited as the leading case on the classification of covenants. Glazebrook v. Woodrow, 8 T. R. 866; Northrop v.
Northrup, 6 Cow. (N. Y.) 296; Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y. 313, 123 N. E. 766.
"In Kingston v. Preston, cited at the bar in Jones v. Barkley, 2 Dougl 684, Lord Mansfield expressed himself to the following effect: 'There are three kinds of covenants: 1. Such as are called mutual and independent, where either party may recover damages from the other, for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2. There are covenants which are conditions and dependent, in which the performance of one depends on the prior performance of another, and, therefore, till this prior condition is performed, the other party is not liable to an action on his covenant. 3. There is also a third sort of covenants, which are mutual conditions to be performed at the same time; and, in these, if one party was ready, and offered to perform his part, and the other neglected, or refused, to perform his, he who was ready, and offered, has fulfilled his engagement, and may maintain an action for the default of the other; though it is not certain that either is obliged to do the first act.9 The complexities of modern industrial and commercial transactions have not rendered the classification inaccurate or inadequate." Rosenthal Paper Co. v. National Folding Box & Paper Co., 226 N. Y 313, 123 N. E. 766.
12 United States. Bank v. Hagner, 26 U. S. (1 Pet.) 455, 7 L. ed. 219; Lowber v. Bangs, 69 U. S. (2 Wall.) 728, 17 L. ed. 768.
Alabama. McCormick v. Badham, 191 Ala. 339, 67 So. 609; Wise v. Sparks, - Ala. - , 73 So. 394.
Arizona. World's Fair Mining Co. v. Powers. 12 Ariz. 285, 100 Pac. 957.
Illinois. Mecum v. Feoria & Oquawka Ry., 21 111. 533.
Louisiana. Stockstill v. Byrd, 132 La. 404, 61 So. 446.
Massachusetts. Smith v. Boston ft Maine Ry., 88 Mass. (6 All.) 262; Bryne v. Dorey, 221 Mass. 399, 109 N. E. 146.
Michigan. Mailhot v. Turner, 157 Mich. 167, 133 Am. St. Rep. 333, 121 N. W. 804; Pearce v. Alward, 163 Mich. 313. 128 N. W. 210.
Nebraska. Hamilton v. Thrall, 7 Neb. 210.
New York. Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53.
North Carolina. Lutz v. Thompson, 87 N. Car. 334.
North Dakota. Sunshine Cloak ft Suit Co. v. Roquette, 30 N. D. 143, L. R. A. 1916E, 932, 152 N. W. 359.
Oregon. Scheland v. Erpelding, 6 Or. 258.
South Dakota. Davis v. Jeffrie, 5 S. D. 352, 58 N. W. 815; Ink v. Rohrig, 23 S. D. 548, 122 N. W. 594.
"Although many nice distinctions are to be found in the books upon the question whether the covenants or promises of the respective parties to the contract are to be considered Independent or dependent, yet it is evident the inclination of the courts has strongly favored the latter construction as being obviously the most just." Bank v. Hagner, 26 U. S. (1 Pet) 455, 464, 7 L. ed. 219.
To the same effect, Telfener v. Russ, 162 U. S. 170, 40 L. ed. 930.
"'In contracts of this description, the undertakings of the respective parties are always considered dependent unless a contrary intention clearly appears. A different construction would in many cases lead to the greatest injustice, and a purchaser might have payment of the consideration money enforced upon him and yet be disabled from procuring the property, for which he paid it.' President, etc., Bank of Columbia v. Hagner, 1 Pet. 455. See also, Page v. Sheinwald, 169 N. Y. 246, 251, and Taylor v. Blair, 59 Hun. 347, 350. The agreement itself was not a transfer, but merely an implied promise to transfer upon performance by the other party. Where a contract requires contemporaneous performance neither party can sue at law until he has put the other in default. An offer to perform made in the pleadings or during the trial is not enough, and even that kind of an offer was not made in this case." Delaware Trust Co. v. Calm, 195 N. Y. 231, 88 N. E. 53.
13 Pead v. Trull, 173 Mass. 450, 53 N. E. 901.
As between precedent covenants and concurrent covenants the tendency of modern law is to construe covenants as concurrent rather than precedent.14