on the authority of the preceding case of Rawson v. Johnson, they held the averment sufficient. In an action for not delivering a quantity of oil, the declaration contained an averment that the plaintiff was always ready and willing to accept it, and pay for the same on the terms agreed upon; yet the defendant would not deliver it, whereby, &c. The plaintiff proved the contract, and a demand, on his part, of the oil in question; but it was objected, on the part of the defendant, that the plaintiff should have proved that he was ready and willing to pay for the oil: Gibbs, C. J. was of opinion, and the court afterwards concurred with him, that the delivery of the oil and payment for it were to be concurrent acts; and that it was not necessary for the plaintiff to prove that he had offered the money to the defendant, till the defendant was ready to perform his part of the contract, by delivering the oil. By the demand which he made on the defendant, he proved himself to be ready and willing to pay for the oil when delivered. The defendant became the purchaser of a leasehold estate, sold by public auction. By the conditions of sale it was stipulated that the purchaser should immediately pay down a deposit in part of the purchase money, and sign an agreement for payment of the remainder within twenty-eight days from the day of sale, when possession should be given of the part in hand, and that the purchaser should have proper conveyances and assignments of the leases, without requiring the lessor's title, on payment of the remainder of the purchase money. In an action of assumpsit, brought by the seller, for non-performance of the conditions on the part of the purchaser, the declaration stated in the first count, that the plaintiffs gave the defendant possession according to the conditions, and were also ready and willing to give him proper conveyances and assignments of the leases of the estate, on payment of the remainder of the purchase money; and the second count stated, that the plaintiffs contracted with the defendant to sell, and the defendant to purchase an estate, and that on the plaintiffs having promised the defendant to convey, he promised to accept the conveyance, and pay the remainder of the purchase money in a reasonable time: that although the plaintiffs were ready and willing, and offered to convey and assign to the defendant, and although a reasonable time had elapsed for accepting the conveyance, yet the defendant would not accept it, or pay the remainder of the s Wilks v. Atkinson, 1 Marsh, 412, recognised in Levy v. Ld. Herbert, 7 Taunt. 318. purchase money. On a motion in arrest of judgment, on the ground that the plaintiffs had not set out their title, or tendered the conveyances to the defendant, it was holden', that the plaintiffs were not bound to set out their title, and that the allegation of their being ready and willing to convey, was equivalent to a performance of the conditions on their parts; but that, at all events, such objections could not be supported after verdict. Where it is agreed that some act shall be performed by each of two parties at the same time", he who was ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part of the agreement. Mutual Promises.-3rdly. Where there are mutual promises, and the mere promise, and not the performance thereof, is the consideration of the agreement (64), there an action may be maintained by either party, without averring performance of the agreement on his part: As where the declaration stated, that it was agreed that a race should be run between a horse of the plaintiff and one of J. S., and in consideration that the plaintiff had agreed to deliver to the defendant a quantity of cloth, the defendant agreed to pay the plaintiff a sum of money in case J. S.'s horse should beat the plaintiff's horse, and then averred, that J. S.'s horse won the race. After verdict for the plaintiff, an exception was taken in arrest of judgment, because it was not averred in the declaration, that the cloth was delivered to the defendant; but the court over-ruled the exception, observing, that this was an action founded on mutual promises, and, therefore, it was not necessary for the plaintiff to make an averment of the delivery of the cloth; and Denison J. took this distinction, "where a plaintiff declares, that in consideration he would deliver to the defendant a piece of cloth, he, the defendant, should pay a sum of money for it, an averment of the delivery of the cloth is necessary; but if the plaintiff states an agreement, and then t Ferry v. Williams, 1 Moore, (C. P.) x Hob. 106. 498. 8 Taunt. 62. S. C. u Jones v. Barkley, Doug. 684. y Martindale v. Fisher, 1 Wils. 88. (64) Whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement." Per Lawrence, J. in Glazebrook v. Woodrow, 8 T. R. 373. states that in consideration of such agreement, &c. in that case an averment is not necessary." Having thus illustrated the nature of conditions precedent, concurrent acts, and mutual promises, it remains only to add, that there are not any technical words by which any of these considerations are constituted. The principal difficulty in the construction of agreements consists in discovering, whether the consideration be a condition precedent, a concurrent act, or a mutual promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties is, or is assumed to be, the governing principle of all the late determinations. When the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. If the reader wishes to pursue this subject further, he will find the cases relating to it fully collected and commented upon, in Mr. Serjeant William's edition of Saunders, vol. i. p. 320. n. 4. vol. ii. p. 352. n. 3. See also Mr. Durnford's note in Willes's Rep. p. 157. and post, tit. Covenant. IV. Of the Pleadings: 1. Of the General Issue, and what may be given in Evidence under it. 1. Of the General Issue, and what may be given in Evidence under it. 1. General Issue.-THE general issue in this action is non assumpsit. If by mistake not guilty be pleaded, instead of z Per Grose, J. in Glazebrook v. Woodrow, 8 T. R. 372. per Sir J. Mansfield, in Smith v. Woodhouse, 2 Bos. & Pul. N. R. 240. d non assumpsit, such plea will be bad on demurrer, but aided after verdict. To a declaration in assumpsit consisting of several counts upon several promises, the defendant may plead non assumpsit generally. The general issue may be pleaded, if there has not been any contract between the parties, or if the real contract be different from that on which the plaintiff has declared; e. g. if the contract was made with the plaintiff, and other persons not named in the action (65); or if the contract was made with the plaintiff only, and the action is brought by the plaintiff and another. Under the general issue every thing may be given in evidence which disaffirms the contract; e. g. the coverture of the plaintiff (66) or defendant at the time of making the contract'. In like manner the defendant may give in evidence, in order to avoid the contract, gaming, infancy, usury. If the contract be a Marsham v. Gibbs, 2 Str. 1022. and Ca. Temp. Hard. 173. Adjudged on special demurrer. b Elrington v. Doshant, 1 Lev. 142. c Taylor v. Willes, Cro. Car. 219. e Wilsford v. Wood, 1 Esp. N. P. C. f Adm. in James v. Fowks, 12 Mod. 101. and daily practice at Nisi Prius. g Adm. by the Court in Hussey v. Jacob, Lord Raym. 89. i h Darby v. Boucher, Salk. 279. Season v. Gilbert, 2 Lev. 144. Bernard v. Saul, Str. 498. and Fort. 336. cited in Bull. N. P. 152. (65) In an action on a tort, a different rule holds: for there, if one only of several persons, who ought to join, bring the action, the defendant can take advantage of it by plea in abatement only, although the defect appear on the face of the declaration, Addison v. Overend, 6 T. R. 766. 5 East's R. 407, except for the purpose of preventing the plaintiff from recovering any more than his share of the damages. Nelthorpe v. Dorrington, 2 Lev. 113. Indeed in assumpsit against one or more defendants, if any of the persons who ought to be joined are omitted, the defendant can only take advantage of it by a plea in abatement. Rice v. Shute, 5 Burr. 2611. Abbot v. Smith, 2 Bl. R. 947. Germain v. Frederick, B. R. T. 25 G. 3. 1 Saund. 291. c. Serjeant William's edit. Dixon v. Bowman, Mich. 1776, there cited. Evans v. Lewis, Exchequer, E. 1774. I Saund. 291, b. S. P. The replication to this plea usually denies that the promises were made jointly. Upon this issue, the counsel for the plaintiff begins, as it is incumbent on the plaintiff to prove his damages. Robey v. Howard, 2 Stark. N. P. C. 555. (66) But if the plaintiff take husband after the suing out of the writ, and before declaration, the defendant can take advantage of the coverture by plea in abatement only. Morgan v. Painter, 6 T. R. 265. good in law, and not performed, the defendant may, under the general issue, in certain cases, give in evidence some legal excuse for the non-performance of it, as accord with satisfaction, a discharge before breach (67), foreign attachment', (judgment having been recovered in the attachment,) or a release Matter of law, which amounts to the general issue, may be pleaded or given in evidence". Payment before action brought may be given in evidence, under the general issue. 2. Accord and Satisfaction. Accord and Satisfaction.-Accord with satisfaction is a good plea in bar to this action, because damages only are recoverable; and accord with satisfaction to one defendant is a bar to all. This plea is frequently pleaded specially; but it may be given in evidence on the general issue (68). An accord to make a good plea must be perfect, complete, and executed for an accord executory is only substituting one cause of action for another, which might go on to any extent. Hence a plea of accord to do several things', with an averment of performance of some only, and of an offer to perform the rest, is bad. So where to an assumpsit on a promissory note, the defendant pleaded an agreement between the defendant and plaintiff, with other creditors of the defendant, that they would accept a composition in satisfaction of their respective debts, to be paid in a reasonable time, and then averred a tender and refusal on the part of the k Adm. per Holt, C. J. in Paramour v. Johnson, 12 Mod. 376. Ld. Raym. 566. S. C. 1 Welles v. Needham, Lord Raym. 180. Nathan v. Giles, 5 Taunt. 558. S. P. m Miller v. Aris, Middlesex Sittings after M. T. 41 G. 3. per Kenyon, C. J. MSS. Hawley v. Peacock, 2 Camp. N. P. C. 558. S. P. n James v. Fowks, 12 Mod. 101. r Peytoe's case, 9 Rep. 79. b. 24. (67) A promise, before it is broken, may be discharged by a parol agreement, but after it is broken it cannot be discharged without deed, by any new agreement, without satisfaction. Per Holt, C. J. 12 Mod. 538. S. P. adm. in Edwards v. Weeks, 1 Mod. 262. (68) "It is indulgence to give accord with satisfaction in evidence, upon non assumpsit, but it has crept in, and is now settled." Per Holt, C. J. 12 Mod. 377. |