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.
"In order, therefore, to discover that intention, and thereby to learn, with some degree of certainty, when performance is necessary to be averred in the declaration and when not, it may not be improper to lay down a few rules which will perhaps be found useful for that purpose.
"1. If a day be appointed for pay-ment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of money, or other act, is to be performed, an action may be brought for the money, or for not doing such other act before performance; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent; and so it is where no time is fixed for performance of that which is the consideration of the money or other act. Dyer, 76a, in margine. 1 Salk. 171, Thorps v. Thorpe; S. C. 1 Ld. Raym. 665,1 Lutw. 250, 12 Mod 461, 1 Vent. 177, Peter v. Opie, per Hale, C. J.; 2 Saund. 350, S. C. 1 Salk. 113, Callonel v. Briggs;
2 H. Black 389, Terry v. Dnntze; 6 T. R. 572, Campbell v. Jones. This seems to be the ground of the judgment in this case of Pordage v. Cole, the money being appointed to be paid on a fixed day, which might happen before the lands were, or could be, conveyed. And upon the same ground is 48 Edw. 3, 2,
3 decided. Lord Holt, in Thorpe v. Thorpe, 12 Mod. 461, 1 Lutw. 250, 251, observes that the report of 48 Edw. 3, in 7 Rep. 10b, Ughtred's case, is incorrect. It is thus put in that book: Sir Richard Pool covenants with Sir Ralph Tolcelser to serve him with three esquires in the wars of France; Sir Ralph Tolcelser covenants, in consideration of those services, to pay him so much money, and it is said that an action will lie for the money before any service.
"But in the book at large the case will be found to have been adjudged upon the above-mentioned rule. The report is this: Sir Richard Pool covenants with Sir Ralph Tolcelser to serve him with three esquires in the wars of France, and Sir Ralph covenants with him to pay so much money for the service; and it was further agreed that half the money should be paid in England on a certain day before they went for France, and the rest by quarterly payments (which also might incur before the service); and it was held that an action might be brought for the money before the service.
"But (2) when a day is appointed for the payment of money, etc., and the day is to happen after the thing which is the consideration of the money, etc., is to be performed, no action can be maintained for the money, etc, before performance. 1 Salk. 171, Thorpe v. Thorpe, 2d Resolution; 12 Mod. 462, 1 Ld. Raym. 665, 1 Lutw. 251, Dyer, 76a, pl. 30.
"3. Where a covenant goes only to part of the consideration on both Bides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration. As where A by deed conveyed to B the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of £500 and an annuity of £160 for life, and covenanted that he had a good title to the plantation, was lawfully possessed of the negroes, and B should quietly enjoy; and B covenanted that A, well and truly performing all and everything therein contained on his part to be performed, he would pay the annuity: in an action by A against B on this covenant, the breach assigned was the nonpayment of the annuity: plea, that A was not at the time legally possessed of the negroes on the plantation, and so had not a good title to convey. The court of K. B. on demurrer held the plea to be ill, and added that, if such plea were allowed, any one negro, not being the property of A, would bar the action. E T. 17 Geo. 3 K. B., Boon v. Eyre; 1 H. Black 273, note; 2 Black. Rep. 1312, S. C. The whole consideration of the covenant on the part of B, the purchaser, to pay the money was the conveyance by A, the seller, to him of the equity of redemption of the plantation, and also the stock of negroes upon it. The excuse for nonpayment of the money was that A had broken his cove-nant as to part of the consideration, namely, the stock of negroes. But as it appeared that A had conveyed the equity of redemption to B, and so had in part executed his covenant, it would be unreasonable that B should keep the plantation, and yet refuse payment, because A had not a good title to the negroes. 6 T. R. 673, per Ashhurst, J. Besides, the damages sustained by the parties would be unequal, if A's covenant were held to be a condition precedent. 1 H. Black. 279, Duke of St. Albans v. Shore. For A on the one side would lose the consideration money of the sale, but B's damage on the other might consist perhaps in the loss only of a few negroes. So where it was agreed between C and D that, in consideration of £500, G should teach D the art of bleaching materials for making paper, and permit him, during the continuance of a patent which C had obtained for that purpose, to bleach such materials according to the specification, and C, in consideration of the sum of £250 paid, and of the further sum of £250 to be paid by D to him, covenanted that he would with all possible expedition teach D the method of bleaching such materials, and D covenanted that he would, on or before the 24th of February, 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 £250; in covenant by C against D the breach assigned was the nonpayment of the £250. Demurrer, that it was not averred that C had taught D the method of blenching 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, ho 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. 6 T. R. 570, Campbell v. Jones.
"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 Boon 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 part