By the Court,
Lacy, J.The question here to be decided turns upon the proper construction to be put upon the covenants or promises of the respective parties to the contract in this suit. It is evident, if the covenants are dependent, that the declaration is bad; and if independent, that it is good, and the breaches well assigned. It is true, as contended, that there is a strong inclination of the courts, in modern cases, to favor the doctrine of dependent covenants, such construction being obviously most just, and tending to prevent a multiplicity of suits. Still, where the parties by the nature and terms of their contract, clearly show that each intended to look to his own part of the agreement, and to rely upon the remedy it afforded, in such cases the performance of the covenant of the one has no reference' to that of the other; and hence the courts are not at liberty, upon such mutual agreements, to make one depend upon the other, but they are bound to construe them separately, and independently of each other. The rules upon this subject are accurately stated by Sergeant Williams, in his learned note to the case of Pordage vs. Cole, 1 Saund. R. 319, in which the English authorities are collated and reviewed. “ If,” says he, “ a day be appointed for payment in full or in part, or for doing any other act, and the day is to happen before thing which is the consideration of the money, or the act which is to be performed, an action will lie for the money, or for not doing such other act before performance; for in such case, it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent. And so it is where no time is fixed for the performance of that which is the consideration of the money or other act. Dyer, 76, a in margin. I Saek. 177, Thorp vs. Thorp. 1 Lord Raymond, 665. 1 Lutw. 250. And this was the ground upon which the judgment in that case rests; for the money was to be paid in that case upon a given day, which might happen before the lands were or could be conveyed. Another rule laid down is, that where a covenant goes to only a part of the consideration, and a breach of such covenant may be had in damages, it is an independent undertaking, and an action may be maintained for a breach of the covenant, without averring performance. And in support of this rule, it is decided in the Court of King’s Bench, (East. 17 Geo. 3, Boone vs. Eyre,) that where a party conveyed an equity of redemption to a plantation, together with a stock of negroes upon it, in consideration of a given sum and an annuity for life, and covenanted that he had good title, the breach assigned was, the non-payment of the annuity, and the plea denied that he was possessed of a valid title to the slaves, and so had no authority to convey. The plea was adjudged bad, and the Court added, if the plea were allowed, then that a failure of any part of the consideration would defeat the action. Campbell vs. Jones, 6 T. R. 570. The reason given for the decision is, 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 had not the whole, he should be permitted to enjoy the part he had without paying for it. The same doctrine, is fully recognized in all the American authorities upon the point. And the reason that mutual promises will bear an action without an allegation of performance, is, that the law binds every man to perform his contract according to its true intent and effect. He makes his bargain, and relies upon the other’s covenant for performance. In such case, it needs no averment of performance on either side to maintain the action. But if it appear that either party was to have the thing done before performance on the other part, then performance, or a readiness to perform, must be averred. In Jones vs. Barkley, Douglass, Lord Mansfield remarks that the dependence or independence of covenants was to be collected from the evident sense and meaning of the parties, however transposed they might be in the deed. Their precedency must depend upon the order of time in which the intent of the transaction required their performance. Cunningham vs. Morrell, 10 J. R. 204. Robb vs. Montgomery, 20 J. R. 15.
The same doctrine is established in Gardinier vs. Cusan, 15 Mass. R. 501. The application of these principles to the case now under consideration, proves conclusively that the mutual covenants of the respective parties are independent undertakings, and therefore there was no necessity to aver, in the declaration, performance or readiness to perform.
Sayre sold and agreed to convey to Craig, by deed with general warranty, a tract of land described in the covenant; and in consideration of this sale, Craig bound himself to pay the purchase money in two different instalments, the first to become due in March 1840, and the second in February, 1841; and to secure these payments, he was toj deliver to Sayre bills of exchange, to be drawn by Erwin and accepted by himself, payable in New-Orleans. Possession was to be delivered to Craig upon the first of January, 1840; and the contract was entered into on the 21st of September, 1839.- From these facts, it is perfectly evident that Sayre had a right to demand the bills upon the execution of the contract, and that Craig had an equal simultaneous right to demand a conveyance. The right of neither depended upon the performance of a condition precedent. Craig agreed to accept and take Sayre’s covenant title; and Sayre was bound to convey, and look to Craig’s personal obligation alone for the purchase money, and to accept the bills of exchange, if tendered in conformity with the agreement to secure the payment of the purchase money. Their covenants were independent of each other, and each relied upon his own part of the agreement for their performance, and the respective obligations were due presently, and attached immediately upon the execution of the deed. By the terms of the contract, the money was to be paid upon a day certain, which was to happen or might happen before making the conveyance, and part of the consideration was executed by delivering possession; and both these facts bring the agreement within the operation of the rules above stated. The same principle holds good where a day certain is fixed for the payment, and no day certain fixed for the performance, which is exactly the case in the present instance. And so the point was determined in Cunningham vs. Morrell, 10 J. R. 204, and in Thorpe vs. Thorpe, 12 Modern, 455.
If these positions be true, then it follows that the declaration is good, and the breach well laid. It consists in the averment of the non-payment of the purchase money on the first instalment, when it fell due. This the plea neither admits nor denies, but seeks to avoid and bar, by alleging the payment of about a thousand dollars on the first in-stalment, before it was due, and the tender of bills of exchange for the residue of the purchase money due on the first instalment, and all the last, which it states was refused. This is tendering the plaintiff an immaterial matter, which he was not bound to take issue upon. The foundation of the action is the non-payment of the purchase money, and the plea is no answer to that charge. The bills of exchange to be drawn by Erwin and accepted by Craig, were intended, as expressed in the covenant, as collateral security to secure the payment of the purchase money. Sayre had a right to the bills, and Craig was bound to present them. But the cause of action arises out of the non-payment of the first instalment, and the plea, by not traversing this fact, must be adjudged insufficient: consequently, the Court erred in overruling the demurrer to it.
Judgment reversed.