Bredin v. Agnew

The opinion of the Court was delivered by

Gibson, C. J.

— Whether covenants are dependent, concurrent, or mutual, depends on the intention of the parties, ascertained by the application of rules of interpretation to the context, from which alone it is to be extracted. Where money is to fall due subsequently to a day appointed for the act, which is the consideration of the contract, performance of the consideration is a condition precedent to a demand of the money, and the covenants are dependent. Where they go to the entire consideration on either side—as where a vendor covenants to convey, the vendee paying the purchase money—they are concurrent. But the case presented by the record is neither of these. It contains no stipulation, express or implied, for priority or concurrence of performance. The parties purchased an estate, burthened with liens to the extent of the purchase money, and reciprocally covenanted that each should pay his share of it, in ease of particular parts of the common burthen; and each relied on the engagement of the other. There was no stipulation that they should go hand in hand; but each had two years to do his part, moving at any pace he should think fit. Were not their covenants, then, mutual in their very nature ? No advantage was to be gained by standing upon the order of their performance. As each payment, by whichsoever made, conduced as much to the benefit of the one party as the other, it was equally the interest of both to proceed as fast as possible; for while a single encumbrance was outstanding, the danger which there was of disturbance from it was mutual. On the contrary, if each had waited for the other to begin, the liens must, in any event, have been pressed to a sale. As it would have been subversive of the object, then, to insist on the performance of mutual conditions, it is not to be presumed that the parties meant to create them. Besides, though writings in pari materia are parts of an entire contract, it is of weight, in relation to the question of intention, that each took the covenant of the other on a separate paper as an isolated security. It is plain that the covenants were intended to be mutual and independent; and it is unimportant, that when the property was eventually sold by the sheriff, the plaintiff himself had not done all he was bound to do to preserve it.

The measure of the damages to which he is entitled, is not what he paid for Bredin’s part, but what he paid without an equivalent. Prima facie, that would be the difference between what he was compelled to pay for Bredin’s part, and the price he had given for his own; because the presumption is, that what he got by the sheriff’s sale, was worth the price which had been affixed to it at the preceding purchase. If the presumption were unfounded, the fact might be shown by evidence, and then the proper amount of the damages would depend, as it must to some extent in any view, on the circumstances of the case. The measure proposed by the plaintiff’s counsel, and adopted by the Judge, was the difference between what he was ultimately compelled to pay for the whole property, and what he and his co-vendee had agreed to give for it. But that contains the principle I have indicated; and the calculation based on it, is only another means to obtain the same result. On both points, therefore, the direction was a proper one.

Judgment affirmed.