4 Thorpe v. Thorpe, 1 Salk. 171; s. c. 1 Ld. Raym. 665; Peeters v Opie,2 Saund. 350; Campbell v. Jones, 6 T. R. 570; Ikin v. Brook. 1 B payment of money, etc, and the clay 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 "3d. Where a covenant goes only to part of the consideration on both sides, 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."2 "4th. But where the 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. As where A., by articles of agreement in consideration of a sum of money to be paid to 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." The question in such cases seems to depend on the implied acquiescence of the parties to treat the contract as divisible, and the covenants as separate, although originally it was entire. See ante, § 24 a, § 24 b, § 972. See, also, Stavers v. Curling, 3 Bing. N. C. 355; Franklin v. Miller, 4 Ad. & El. 599; Fishmongers' Co. v. Robertson, 5 Man. & G. 131; Havelock v. Geddes, 10 East, 555. In Knight v. The New Eng. Worsted Co., 2Cush. 285, Chief Justice Shaw says, in a very elaborate and able opinion: "Where several different instruments are all executed at the same time, and bear the same date, and have a relation to each other, they are all said to be deemed in law to constitute one and the same transaction, - one entire contract, - and yet the legal effect is to bind different parties to do different things at different times. Thus a contract may be one and entire in its origin; and yet, looking to the performance of different things at different times, it may be divisible in its operation. This, then, leads to the great question which has been much agitated in courts of law, and sometimes has been the subject of very subtile distinctions; that is to say, whether mutual stipulations are dependent, so that he who demands performance must show performance, or a tender or readiness to perform on his part, or independent, so that the consideration of the stipulation on the one side is the mutual promise on the other, not requiring an actual performance or tender, but where the remedy upon both sides is by action. This question depends upon the intention of the parties, and the nature of the respective stipulations, and is to be determined rather from the sense of the whole taken together than upon any particular form of expression. If 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 on such a day, and in consideration thereof B. covenants to pay A. a sum of money on the same day, neither can mainseasonably 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 be 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 an action on the contract. The rule was laid down by Lord Mansfield in the case of Boone v. Eyre,
& Ad. 124; Irving v. King, 4 C. & P. 309; Mattock v. Kinglake, 10 Ad. & El. 50; Howden v. Simpson, Ib. 793; Pistor v. Cater, 9 M. & W. 315; Alexander v. Gardner, 1 Bing. N. C. 671; s. c. 1 Scott, 630; Robb v. Montgomery, 20 Johns. 15; Lowry v. Mehaffy, 10 Watts, 387; Golds-borough v. Orr, 8 Wheat. 217; Lord v. Belknap, 1 Cush. 279; Cunningham v. Morrell, 10 Johns. 203.
1 Thorpe v. Thorpe, 1 Salk. 171; 1 Ld. Rayrn. 665; Bean v. Atwater, 4 Conn. 9; Dey v. Dox, 9 Wend. 129; Morris v. Sliter, 1 Denio, 59. See Meriden Britannia Co. v. Zingsen, 48 N. Y. 247 (1872).
2 The leading case is Boone v. Eyre, 1 H. Black. 273, note a. In this case A. conveyed to B. by deed the equity of redemption of a plantation in the West Indies, together with the stock of negroes on 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 every thing therein contained on his part to be performed, he would pay the annuity. The action was brought by A. against B. on this covenant, and the broach assigned was the non-payment of the annuity; the plea was 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 on demurrer held the plea to be bad. Lord Mansfield said: "The distinction is very clear: where mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other; but where they go only to a part, where a breach may be paid for damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. If this plea were to be allowed, anyone negro not being the property of the plaintiff would bar the action." Sergeant Williams, in commenting on this case, 1 Wms. Saund. 320 d, says: "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 non-payment of the money was that A. had broken his covenant 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 bo mutual covenants go to the whole consideration on both sides, they are mutual conditions, and performance must 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. 573, per Ashhurst, J. Besides, the damages sustained by the parties would be unequal, if A.s covenant were held to be a condition precedent. Duke of St. Alban's v. Shore, 1 H. Black. 279. 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 C. 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 non-payment of the £250. 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. 570. 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 any thing 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 averred."1 "5th. Where two acts are to be done at the same time, as where A. covenants to convey an estate to B.