The opinion of the court was delivered by
McIver, A. J.This was an action to recover damages for the breach of two contracts, under seal, executed on the same day, whereby the defendant promised, in one of the said contracts, to deliver to the plaintiffs, at a specified place, four bales of cotton, of a specified weight and quality, on November 1st, 1876, and the other promised to deliver to the plaintiffs, at the same place, three bales of cotton, of like weight and quality, on November 1st, 1877. The defendant, in his answer, admitted the execution of the said contracts, which are spoken of in the testimony as notes, and the non-performance of the same, but set up as a defence the following: “ That said contracts were negotiated with one Col. Andrews, who represented himself as acting for the plaintiffs, and that the consideration was a verbal promise or undertaking that plaintiffs would make titles to defendant of a tract of land in said county of six hundred acres, more or less, and warrant and defend the same unto defendant when payment was made; that soon after the making of said contracts, defendant was notified by another claimant that he had paramount titles to said land, and was warned not to take possession upon pain of being treated as a trespasser; that thereupon defendant declined to take possession of said land, and refused to pay the amount stipulated without better assurances, which plaintiffs declined to give, and the said Andrews, for the plaintiffs, notified defendant that the plaintiffs would not give title with the guaranties fitst stipulated ; that the refusal and inability of plaintiffs to make good and sufficient titles to said land absolved defendant from his obligation — never having been in possession; that defendant is willing, and has ever been, to pay the price stipulated for said land, provided the same can be confirmed to him by unshadowed titles, which plaintiffs have never tendered and which defendant denies they are able to give, and defendant challenges title in plaintiffs at all.” It will be observed that there is no allegation and there was no proof that the plaintiffs undertook to deliver possession of the land to the defendant. For *188aught that appears it may be that the defendant bought at a risk and knew that he was so buying. Indeed, if we may be allowed to conjecture upon the subject, it would seem from the price agreed to be paid that the land must either have been of a very inferior quality, or that the uncertainty as to the title and the difficulty of obtaining possession very materially reduced its market value. Be that as it may, however, as in the absence of any proof upon the subject, we have no means of determining which would be the correct inference, there is one thing very ■certain, and that is that all the plaintiffs covenanted on their part to do was to give warranty titles for the land after the notes (so called) were paid ; the language of defendant, in his own testimony, being: “ The consideration, of the said contracts was a verbal promise to convey, with warranty as to title, a certain tract of wood and swamp land when the notes were paid; that the notes were first to be paid, and then titles were to be made.” Now, there is no evidence whatever to show that the plaintiffs have ever refused, or declared their purpose to refuse, to give the warranty titles agreed upon, except that which is supposed to be derived from the declarations of Andrews, which will be presently considered; nor is there any evidence to show that the defendant has ever notified the plaintiffs of their inability to obtain possession of the land, or called upon them to make good their agreement to warrant the title. But defendant relies solely upon proof of certain declarations of Andrews, who was dead at the time of the trial, alleged to have been made a short time after the execution of said contracts, to the effect “that the plaintiffs would not make warranty title as originally promised.” This testimony was objected to by the plaintiffs, upon the ground that no declaration of Andrews made subsequent to the execution of the contracts sued upon, would be competent until it was shown that, at the time such declarations were made, Andrews was acting as the agent of the plaintiffs and speaking by their authority. The Circuit judge ruled “ that, inasmuch as Andrews had negotiated the original contract, the presumption was that his authority as to the matter continued until the contract was executed or consummated, and therefore his declarations were admissible.” To this ruling the plaintiffs excepted, and this raises the first ques*189tion for our consideration. We think the exception was well taken, The rule that there is no presumption that an agent to sell has power to rescind the sale or materially modify its terms, after it has become an executed contract, is well settled, and is •fully sustained by the authorities cited in appellant’s brief. Indeed, it does not appear that the declarations here in question even purported to come from Andrews, as agent of the plaintiffs, and may, therefore, have been nothing more than an expression of his individual opinion as to what the plaintiffs would do. Such, indeed, would seem to be the legitimate inference from the testimony of the defendant himself, for, in speaking of this matter, he uses this language: “That Col. Andrews informed him that the plaintiffs would not make warranty title as promised originally; that he did not.Tcnow whether or not Col. Andrews spolce by authority from plaintiffs, but presumed he did, as he was their agent.” He does not even say that Andrews represented himself as speaking for the plaintiffs, or that he inquired whether such was the fact. But it is manifest that he relied upon the presumption which, as we have seen, is not well founded, that because Andrews was the agent of the* plaintiffs in making the original contract of the sale, his agency not only continued, but invested him with the power -to rescind the sale or materially modify its terms.
The next question to be considered is, whether the covenants of the parties were mutual and dependent or independent. The first rule laid down by Mr. Sergeant Williams, in his elaborate note to the case of Pordage v. Cole, 1 Wms. Saund. 310, as a test by which to determine whether the covenants of the several parties to a contract are mutual and dependent or independent, is as follows: “ If a day be appointed for payment of money, or part of it, or for doing any other act, and the day is to happen, or may happen, before the thing which is the consideration of the money or other act to be performed, an action may be brought for the money, or for not doing such other act before performance, for it appears that the party relied upon his remedy and did not intend to make the performance a condition precedent.” This doctrine is recognized and applied in Carter v. Carter, 1 Bail. 217. Now, in the case under consideration, the money *190was to be paid in installments — that is to say, the cotton, which constituted the consideration of the plaintiffs’ promise to convey, was to be delivered in installments — a part of it long before the plaintiffs could be called upon to perform their part of the contract, and, according to the evidence of the defendant himself, all of it was to be delivered before the plaintiffs were bound to perform their covenant, for he says “ the notes were first to be paid and then titles were to be made.” The fact, if indeed such be the fact, that the plaintiffs had no title, or no valid title, to the land at the time the contract was made, or even at the time this action was commenced, cannot alter the case. . Their contract was to convey with warranty, and, for aught that appears, (the declarations of Andrews being incompetent evidence,) this they were ready and willing to do upon the payment of the notes, as they are called. For, though having no title when the action was commenced, they might, for the purpose of enabling them to perform their covenant, have acquired title in time to enable them to do so, as in the case of Davis v. Woodward, 2 Mills’ Const. R. 56.
Under the view which we have taken of the case, it becomes unimportant to consider the sufficiency of the proof of the outstanding paramount title. The judgment of the Circuit Court is set aside, and a new trial is ordered.
Willard, C. J., and McGowan, A. J., concurred.