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.
As the modern classification of contracts was first laid down by Lord Mansfield in Kingston v. Preston,1 the modern doctrines for ascertaining the nature of any given covenant are based on a note by Sergeant Williams to Pordage v. Cole;2 and as the general principles laid down in this note have been recognized, followed and applied in subsequent decisions, though not always with perfect consistency, the note will be given in full.3 This note has no judicial authority. The author criticises the reasoning of the earlier eases, and often seeks to rationalize them by justifying, on grounds that never occurred to the courts, the results which they actually reached. At the same time the views set forth in this note are so much better suited to modern conditions, and conform so much more closely to the actual intentions of the parties than did the original theories of the English courts, that modern law on this subject is, to a large extent, based on this note rather than on the earlier cases; and its application and development will be discussed in the following sections.4
14 Arizona, World's Fair Mining Co v. Powers, 12 Ariz. 285, 100 Pac 957.
California. Deacon v. Blodgett, 111 Cal. 416, 44 Pac. 159.
Louisiana. Stockstill v. Byrd, 132 La. 404, 61 So. 446.
Michigan. Pearce v. Alward, 163 Mich. 313, 128 N. W. 210.
New York. Delaware Trust Co v. Calm, 195 N. Y. 231, 88 N. E. 53.
South Dakota. Ink v. Rohrig, 23 S. D. 548, 122 N. W. 594.
Washington. Ihrke v. Continental Life Ins. & Investment Co., 91 Wash. 342, L. R. A. 1916F, 430, 157 Pac 800.
1 Kingston v. Preston, 2 Doug. 689.
2 Pordage v. Cole, 1 Wms. Sauml. 3191.
3 "Almost all 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; and, of course, when it is necessary to aver performance in the declaration and when not. Thus, if A covenant with B to serve him for a year, and B covenant with A to pay him £10, 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 £10 for the service, these words make the service a condition precedent, and A can not 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 of an-other 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 he until it be solemnized 15 H. 7, 10 pl. 17, Bro. Covenant, 22, 12 Mod. 460; Thorpe v. Thorpe, Hob 106; Lampleigh v. Brathwait. Also where A, in consideration of £10, 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 £10, will deliver to him all the books of the law, B can not bring an action for the books before he has paid the money. 1 Rol. Rep. 125; Everard v. Hopkins, per Coke, C. J. So where B covenanted with C, bis 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 pay such a sum, it was adjudged that this was a condition precedent, and B must make the assurance before be 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. 3 Leon. 219, Brocas's case. 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. 1 Rol. Abr. 415, pl. 8, S C, cited 12 Mod. 463; Thorpe v. Thorpe, 1 Ld. Raym. 665, 666; 1 Lutw. 251, 252. There are many other authorities of a similar nature which I refer the reader to: 1 Rol. Rep. 336; Spanish Ambassador v. Gifford, Yelv. 133, 134; Bettis-worth v. Campion, Hob 88; Nichols v. Raynbred, 1 Lev. 203; Beany v. Turner, Hard 102, 103; Gibbons v. Prewd, 1 Str. 535; Blackwell v. Nash, Ibid. 712; Dawson v. Myer, 1 Wils. 88; Mar-tindale v. Fisher. Hence it appears that the judges in these cases seem to have founded their construction of the independency or dependency of covenants or agreements on artificial and subtle distinctions, without regarding the intent and meaning of the parties. For the rule which is contained in them all seems clear and indisputable: that where there are several covenants, promises or agreements which are independent of each other, one party may bring an action against the other for a breach of his covenants, etc., without averring a performance of the covenants, etc, on his, the plaintiff's part; and it is no excuse for the defendant to allege in his plea a breach of the covenants, etc, on the part of the plaintiff; according to Justinian's rule in the civil law, 'Qui actionem habet ad rem recuperandam, ipsam rem habere videtur' Justin de Regulis Juris, 361. But where the covenants, etc, are dependent, it is necessary for the plaintiff to aver and prove a performance of the covenants, etc, on his part, to entitle himself to an action for the breach of the covenants on the part of the defendant; and so are also 7 Rep 10, a, b, Ughtreds case; Doug. 690, 3rd ed, Kingston v. Preston, cited in Jones v Barkley. The difficulty lies in the application of this rule to the particular case. It is justly observed that covenants, etc., 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. 1 T. R. 645, Hotham v. East India Company; 6 T. R. 668, Porter v. Shephard; Ibid. 571, Campbell v. Jones; 7 T. R. 130, Morton v. Lamb.