It is well settled that where- the, covenants between the parties are mutual and both parties are. to perform at the same time, the covenants operate as mutual conditions, and neither party can maintain an action, until he has performed or tendered a performance of his part of the agreement. But when it appears from the terms of the agreement, or the nature of the case, that the things to be done were not intended to be concurrent acts, but the performance of one party was to precede that of the other, then he who has to do the first act may be sued, although nothing has been done or offered to be done by the other party. (Morris v. Sliter, 1 Denio, 59.)
It is obvious from the reading of this agreement, that the covenants were dependent and to be performed at the same time. The defendant was to cause the premises which he contracted to-sell, to be surveyed by a person named, and to procure and. exhibit a certificate of a clear unincumbered title to the same,, and to execute to the plaintiff a good and sufficient deed for the conveyance of the premises, with full covenants; and was also to convey to the plaintiff the personal property referred to, on a day and at a place specified in the contract. The plaintiff on his part, at the same time and place, was to procure and exhibit to the defendant a certificate of an unincumbered title to his land in Pompey, and to secure the payment of the purchase price of the premises he was purchasing by executing- his bond to the defendant for such purchase money, together with his mortgage upon the premises purchased, covering also his own-land in Pompey.
Where the consideration- of the- defendant’s contract is executory or his performance is; to-depend on some act to be done or forborne by the plaintiff,, or; on some other event, the plaintiff,, must aver-the fulfilment-of such condition precedent-—whether *367it is in the affirmative or negative, or to be performed or observed by him or by the defendant, or by any other person, or must show some excuse for the non-performance. (1 Chitty’s Pl. ed. 1812, 309; Dakin v. Williams, 11 Wend. 68; Com. Dig. Pleader, C. 59; Thomas v. Van Ness, 4 Wend. 553; Wright v. Tuttle, 4 Day, 313.) But when the agreement between the parties contains reciprocal covenants constituting mutual conditions, to be performed at the same time, it has been often said to be sufficient for the plaintiff to aver a readiness to perform his part of the contract and a neglect or refusal of the defendant to perform his part. (1 Chitty’s Pl. 309; 1 Saund. 320, note 4; 2 Saund. 352, note 3; Miller v. Drake, 1 Caines, 45; Rawson v. Johnson, 1 East, 203; Topping v. Root, 5 Cowen, 404; Porter v. Rose, 12 John. Rep. 209; West v. Emmons, 5 id. 179.) It is now settled, however, that a mere readiness to perform in such case is not sufficient, but the plaintiff must aver a tender of performance on his part. (Johnson v. Wygant, 11 Wend. 48; Parker v. Parmele, 20 John. Rep. 130.)
If the vendor sues for the consideration money, he must aver a tender of such deed, as by the terms of the contract he was to give. If the action is by the vendee against the vendor, for not conveying, the plaintiff must aver a tender of the consideration money before suit brought. In this case the plaintiff among other things covenanted to procure and exhibit to the defendant, at the time and place mentioned, a certificate of an unincumbered title to the premises he owned in Pompey. He clearly had the power to perform that, without any act being previously necessary to be done by the defendant to enable him to do it. And there is good reason that it should, precede the making of the conveyance by the defendant. And having the power to do that, without any act being previously done by the defendant, it was necessary in order to put the defendant in default to aver performance in that respect. The plaintiff, it is true, could, not have executed a bond and mortgage, until the defendant procured the premises to be surveyed; for until then, the quantity of land purchased, and consequently the amount to be secured, could not be known to either party.
*368The averment in the declaration should have been that the plaintiff had procured and exhibited to the defendant the certificate referred to, and that he was ready and willing, and had offered to execute the bond and mortgage, upon the defendant’s executing a deed for the premises purchased and conveying the personal property. It follows that the first count is bad for want of such an averment as has been mentioned.
The second count assumes that the performance of the plaintiff’s covenants was a condition precedent to the performance by the defendant of the things to be done by him. It does not allege performance by the plaintiff, but sets up that performance was excused by the delinquency of the defendant. In averring an excuse of performance by the plaintiff, the rule requires him to state his readiness to perform the act, and the particular circumstances which constitute such excuse. He must in general show that the defendant either prevented the performance, or rendered it unnecessary to do the prior act, by his neglect, or by his discharging the plaintiff from performance. Assuming as this count does, that the plaintiff’s performance was a precedent condition to the defendant’s obligation to perform, I am inclined to the opinion that the count is bad, for not showing that the plaintiff procured and exhibited to the defendant a certificate of an unincumbered title to his premises in Pompey. The excuse given for not executing a bond and mortgage is well enough. The averment shows that the plaintiff was ready and willing to execute, but that he was prevented by reason that the defendant failed to furnish a survey of the premises as he had covenanted to do: but his failure in that did not preclude the plaintiff from furnishing the certificate. He should have averred that he did procure and exhibit it to the defendant and was ready and willing to execute the bond and mortgage, showing thereby a performance of every thing which it was in his power to perform and an excuse for the non-performance of the residue.
I do not think it was essential for the plaintiff to take notice of the clause of the agreement providing for the reference of certain matters to the decision of Messrs. Gott and Noxon. A par*369ty declaring on an agreement need only state so much of it as constitutes the engagement the breach of which is relied on. If however the defendant’s covenants are qualified, or the plaintiff’s covenants are enlarged by the further provision, it must be stated. (Henry v. Cleland, 14 John. 400; 1 Chitty’s Pl. 302; Clarke v. Gray, 6 East, 564; Sandford v. Halsey, 2 Denio, 253.) Such is not the case here. It is said that the respective certificates of title were to be submitted to the gentlemen named before they became perfect. It seems plain to me that such reference and approval was contemplated only in case the parties disagreed. Until then there was no necessity of resorting to the agency of these referees, and such an exigency had not arisen when this suit was brought.
The declaration is however defective for the reasons before mentioned. The defendant is therefore entitled to judgment with the usual leave to amend.
Judgment for the defendant.