The opinion of the Court was by
Weston C. J.The plaintiff has received of the defendant a deed of warranty of certain real estate, for which it appears, by his receipt of December 20, 1836, he was to allow him four thousand dollars, when he shall have cleared the incumbrances on the property. The defendant has removed the incumbrances ; and his right to be allowed the stipulated sum would be perfect, but for a clause added to the receipt, which is in these words, “ which incumbrances are to be removed by him, on or before the first day of July next.
*277The incumbrances were not removed on that day, nor until more than a year afterwards. And the argument is, on the part of the plaintiff, that by reason of the failure of the defendant to cause this to be done at the time appointed, he has now no claim to any allowance whatever, by way of offset. This construction would give to the clause, under consideration, the force of a condition precedent. No direct language is used, expressive of such a condition, nor is it deducible by necessary implication. The incumbrance was less than the stipulated price; and it would be unreasonable to subject the defendant to tho hazard of a forfeiture of the estate, if he did not remove it at the time, unless such is the plain meaning of tho terms used.
Although the plaintiff was secured by the covenant in tho deed, yet without the latter clause in the receipt, no definite time was fixed, within which the business was to be closed. The defendant, by accepting tho receipt, must be deemed to have assented to the stipulation. It is equivalent to an aiiirmative agreement on his part to that effect. It does not go to the whole consideration, and for that reason, should not be regarded as a condition precedent. Duke of St. Albans v. Shore, Douglas, 690, note; Boone v. Eyre, 1 H. Blackstone, 275, note; Bennet v. Executors of Pixley, 7 Johns. 249.
So far as the plaintiff has suffered damage from the delinquency of the defendant, he has a right to have it deducted from the price he agreed to give. He should be placed, by compensation, in the same condition, as if the defendant had fulfilled the stipulation. The jury were not able to agree before; and the matter is not so easily liquidated in a trial at law. Unless however the parties can arrange it between themselves, or by a submission to a reference, the action must siand for trial