The plaintiff has neither averred nor was there proof of any other breach of the contract upon the part of the defendant, except the non-payment of the purchase money. The plaintiff had a right to sue for each installment, as they severally became payable; but this right he has waived, and now seeks to recover the whole purchase *Page 110 money in this action, without an averment or proof of a tender of a conveyance, or a readiness or willingness to convey. It is not denied by the court below, that if the several payments had been made as they fell due, and the suit had been commenced for the last installment alone, that the plaintiff must have made such an averment and sustained it by proof, if questioned; the point is too plain to admit of discussion. It is, however, said that a right of action accrued as the installments became payable, which the non-performance of the plaintiff would not discharge. This doctrine assumes a right, upon the part of the plaintiff, to divide his cause of action into as many suits as there were installments. The first answer to this suggestion is, that the consideration for the conveyance by the vendor was an entire sum, to be paid by installments; that the whole was due at the commencement of the action, and the plaintiff has sued for the whole purchase money without attempting to distinguish, in his complaint or evidence, between the different installments. The second answer is, that the plaintiff having elected to wait until the fifth and last installment became due, and upon the payment of which, as this case stands, the defendant would be entitled to a deed, cannot now sustain his action for either installments, without proof of performance or readiness to perform on his part. The covenants, as to the four first installments, were originally independent; but the plaintiff, by his omission to insist upon a strict performance by the defendant, has lost the right to bring more than one suit for the money, which formed the consideration for his conveyance. The defendant, by a tender of the whole, which he has now a right to pay, would be entitled to his deed. The plaintiff, on the other hand, must establish his right to the consideration as an entirety, or he cannot recover anything. If he recovered in this action but $50, the judgment would be a complete bar to any further claim for the purchase money, and when that judgment was paid the defendant would be entitled to his deed. *Page 111
The defendant could not protect himself against an action by an offer to pay the first, or all of the four first installments; as the consideration was entire, and all due, the plaintiff could insist upon the whole. And yet, if because the covenants were originally independent they must always continue so, the defendant must have the right to discharge by payments what the plaintiff could enforce by action.
The truth is, the parties, by lapse of time, are in the same situation as though the purchase money was all payable at one time. The defendant has lost his right to pay the installments separately, and the plaintiff his right to enforce collection by separate suits. There is but a single cause of action, one and indivisible. The defendant, if he would obtain his deed, must pay all; and the plaintiff, if he would recover, must show such a performance on his part as would entitle him to all the unpaid consideration. The condition attaches to the whole debt and every part of it. The judgment of the supreme court should be reversed, and a new trial ordered.
DENIO, JOHNSON, MARVIN and DEAN, Js., concurred.