— 1. In Wheelock v. Fitch, [3 Porter’s Rep. 387,] it was held to be error to try a case as on issue joined, when there was a demurrer in the record to the plea, which did not appear to have been disposed of. But this ease has been overruled by a late adjudication, and it is now settled that after a trial by jury, the demurrer will be considered as waived, and the parties understood to have gone to trial, without requiring an issue to be made up. This view being decisive of the first point, we are relieved from the necessity of enquiring whether the declaration and the second plea are sufficient in law.
2. In Jones v. Sommerville [1 Porter’s Rep. 437,] the different kinds of covenants are stated, as well as the rules by which it may be ascertained, to which class each particular covenant may be assigned. The rules by which the reciprocal obligations and duties of covenantors are determined, apply with all force to parol contracts, and upon this hypothesis we will consider the stipulations of the parties.
There are no technical words in a contract required to make a stipulation either a condition precedent or subsequent, nor does it depend upon the place which is assigned to a clause in the contract, so that it operates as a proviso or stipulation, for the same words have been construed as either the one or the other, according to the nature of the transaction* The contradictions in the interpretation of contracts to be found in the books, have not proceeded from a denial of the principle, but from its misapplication in the particular case adjudged.
Covenants are said to be independent, when a day is appointed •for the payment of money by the defendant, or for the doing of *156any other act by him, and such day is to happen before the thing, which is the consideration of the defendant’s covenant, was to be performed ; because there it would appear that the defendant relied upon his remedy, and did not intend to make the plaintiff’s performance a condition precedent. (1 Porter’s Rep. 457.) Let us examine the contract of the parties in reference to this rule. The plaintiff in error promises to pay to the defendant a sum of money on a day certain ; provided the latter will make him a satisfactory deed for two lots, the consideration of the plaintiff’s promise, when the money is paid. Here the time fixed for the payment of the money cannot arrive previous to that on which the stipulation for titles may become absolute. The one promise, we infer from the contract, forms the entire consideration for the other, and the paj^ment of the money, or the offer to pay it, would have invested the plaintiff in error with a right of action against the defendant, if he had refused to make a title to the lots. If this view be correct, and we think it indisputable, the stipulations of the parties cannot be regarded as independent.
Whenitwo acts are to be done at the same time on a day named, or generally by the Opposite parties, neither can maintain an action without showing performance, or an offer to perform, or at least, a readiness to perform, though it was uncertain which of them was bound to do the first act. So where there are mutual promises, yet if one be the consideration of the other, then the plaintiff’s performance must, in general, be averred and proved. If, however, it is apparent that the defendant relied rather on the mere promise than its actual performance, it will be unnecessary to aver performance. (1 Chitty’s Pl. 310 to 315.)
In the case at bar, it is clear that neither parly relied on the mere promise of the other, or that the plaintiff in error intended to part with his money until the defendant was ready and willing to make a title. The circumlocution employed, obviously from the greater caution, indicates that the parties contemplated a simultaneous performance of their respective stipulations. This conclusion is not opposed by these words “ when the note above is paid,” introduced at the conclusion of the contract. They *157do not amount to a promise on the part of the plaintiff in error to part with his money, without receiving in return a title to the lots. The common sense as well as a technical interpretation of the contract is opposed to such an idea.
The charge of the circuit court to the jury is at variance with the opinion we have expressed, and consequently the judgment is reversed and the case remanded.