1 Duke of St. Alban's v. Shore, 1 H. Black. 270; Large v. Cheshire, 1 Vent. 147; Dakin v. Williams, 11 Wend. 67. See Butler v. Manny, 52 Mo. 497 (1873).
2 W. Bl. 1312, cited in 1 H. Bl. 273, in a note. It is this: Where mutual covenants go to the whole consideration on both sides, there are dependent covenants, the one precedent to the other. But where they go only to a part, and a breach may be paid for in damages, there the defendant has a remedy on his covenant, and shall not plead it as a condition precedent. This rule has been restated and affirmed with slight variations adapting it to particular circumstances, in a great number of cases, both in England and in this country. Duke of St. Alban's v. Shore, tain an action without showing performance of or an offer to perform his part, though it is not certain which of them is obliged to do the first act; and this particularly applies to all cases of sale."1 One other rule may be added, namely, that where the act of one party must necessarily precede the act of the other, it is a condition precedent which must be performed before action can be brought against the other party.2 Accordingly, where a written contract requires certain acts to be done by one party, which must, in the order of events, necessarily be done before the other party can fulfil his part of the contract, the doing of such acts is a condition precedent to maintaining an action for non-performance by the other party, although there is a stipulation for liquidated damages for not doing them, and there is a time fixed for payment sufficiently distant to allow the work to be done in the mean time.3
1 H. Bl. 270; Campbell v. Jones, 6 T. R. 570; Havelock v. Geddes, 10 East, 555, 564; Glazebrook v. Woodrow, 8 T. R. 366; Storer v. Gordon,
3 M. & S. 308. See, also, Kingston v. Preston, cited in Jones v. Bark-ley, 2 Doug. 684, 689. These principles have been fully recognized and adopted in this Commonwealth. Hopkins v. Young, 11 Mass. 302; Tiles-ton v. Newell, 13 Mass. 406. Where several different instruments are executed at one time, and have relation to each other, they should be construed together as one contract. Makepeace v. Harvard College, 10 Pick. 298; Sibley v. Holden, 10 Pick. 249. The question whether covenants are dependent or independent, depends upon the intentions of the parties, and the nature of the acts to be performed. Howland v. Leach,
11 Pick. 151. Some of the stipulations in an entire contract may be dependent, and others independent according to their nature and the order of performance. Couch v. Ingersoll, 2 Pick. 292; Kane v. Hood, 13 Pick. 281. The same rules of construction apply to a simple contract as to a contract under seal." See, also, McCullough v. Cox, 6 Barb. 386; Kee-nan v. Brown, 21 Vt. 86; Tompkins v. Elliot, 5 Wend. 496; Chanter v. Leese, 4 M. & W. 295; s. c. 5 Ib. 698; Allen v. Cameron, 1 C. & M. 832. Although two executory contracts made at the same time in and by the same instrument may be mutual so far as one promise is the consideration of the other, yet so far as their execution is concerned they may be independent, and breach of one is no defence to an action on the other, but only ground for a cross-suit. Dodge v. McClintock, 47 N. H. 383; Clough v. Baker, 48 N. H. 254, where a dentist sold out his business for a note of S3,000, giving a bond not to prosecute his business within certain limits. A breach of the bond was held no defence to the note.
1 Callonel v. Briggs, 1 Salk. 112; Thorpe v. Thorpe, 1 Salk. 171; Goodisson v. Nunn, 4 T. R. 761; note by Serg. Williams, 1 Saund. 320 e; Cook v. Jennings, 7 T. R. 381; Peeters v. Opie, 2 Saund. 352, note 3; Campbell v. Gittings, 19 Ohio, 317; Gazley v. Price, 16 Johns. 267; Williams v. Healey, 3 Denio, 363.
2 Mill Dam Foundery v. Hovey, 21 Pick. 439: Coombe v. Greene, 11 M. & W. 480; Knight v. New England Worsted Co., 2 Cush. 286. But see Macintosh v. The Midland Counties Railway Co., 14 M. & W. 548.
3 Cadwell v. Blake, 6 Gray, 402 (1856).