Volume IX. 1846. GILES V. GILES. Demurrer, assigning for causes that the plea is a traverse of an immaterial averment in the declaration, and tends to raise an immaterial issue: and that the delivery of possession of the premises mentioned in the agreement was an independent undertaking, and not a condition precedent to, or concurrent with, the payment of the money, in respect of the nonpayment of which the action is brought. That the payment of the rent by plaintiff is not a condition precedent to or concurrent with the payment of the said money. That, by the traverse, two matters quite distinct in themselves are mixed up together, namely, the nondelivery of possession of the premises, and the nonpayment of the rent; whereas the denial of readiness and willingness ought to have been pleaded separately to each. That the plea is double, Joinder in demurrer. Plea 3. That plaintiff was not ready and willing to release the defendant, his heirs, &c., from all claim of and under the will in the agreement mentioned, and also to release and quit claim to defendant, his heirs, &c., all the freehold and leasehold lands &c. (as in the declaration), and to complete the said agreement, in manner and form &c. : conclusion to the country. Demurrer, assigning for cause that the plea is a traverse of an immaterial averment in the declaration, and tends to raise an immaterial issue: that the undertaking to release the defendant, his heirs and assigns, as in the agreement set forth, was a distinct and independent undertaking, and was not a condition precedent to, or concurrent with, the payment by defendant to plaintiff of the money. That it was defendant's duty to prepare and tender such release: and that this obligation 1846. GILES on his part would not be waived or discharged by the Queen's Bench. mere fact that plaintiff was not ready or willing to execute it and that, consequently, the averment of the plaintiff's readiness and willingness (taken per se) is wholly immaterial to the result of the action. Joinder in demurrer. The demurrer was argued in last Easter term (a). Butt, for the plaintiff. The pleas tender immaterial issues. The allegations which the pleas traverse were unnecessary, because they relate, not to conditions precedent, but to independent stipulations. The authorities are collected in note (4) to Pordage v. Cole (b). It is there laid down (rule 3) that, "where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant, without averring performance in the declaration;" and Boone v. Eyre (c) is cited. There the defendant's covenant was, that, "the plaintiff well and truly performing all and every thing therein contained on his part to be performed," the defendant would pay an annuity. The plaintiff, by the same deed, transferred an equity of redemption in an estate, with the negroes on it, in consideration of 500/. and the annuity; and covenanted that he had title: and, on covenant for non-payment of the annuity, it was held no plea to traverse the title. So, here, there are several (a) May 1, 1846. Before Lord Denman C. J., Patteson, Williams and Wightman Js. (b) 1 Wms. Saund. 320 a. 6th ed. (c) In K. B., note (a) to Duke of St. Albans v. Shore, 1 H. Bl. 273; and see, as to S. C., 6 T. R. 573 (in Campbell v. Jones): Also Boone v. Eyre, in C. P., 2 W. Bl. 1312. V. GILES. Volume IX. 1846. GILES V. GILES. distinct stipulations on the part of the plaintiff; and an action might have been maintained for the breach of any one, even before the time arrived for payment of the money by the defendant. Thus, the plaintiff is to pay 30%. for rent: he is also to manage the land in a husbandlike manner. The damages might be assessed independently for any one breach by the plaintiff. Ritchie v. Atkinson (a), Campbell v. Jones (b), Carpenter v. Cresswell (c) and Dawson v. Dyer (d) are instances of applications of the same rule. In the 6th edition of Saunders's Reports the following remark is appended to the note already cited (e). "Where the consideration for the payment of money is entire and indivisible, as where the benefit expected by the defendant under the agreement is to result from the enjoyment of every part of the consideration jointly, so that the money payable is neither apportioned by the contract, nor capable of being apportioned by a jury, no action is maintainable, if any part of the consideration has failed; for, being entire, by failing partially, it fails altogether." For this Chanter v. Leese (g) is cited, where the consideration was manifestly entire. Stavers v. Curling (h) is an instance in which the covenants were held to be inde. pendent, the plaintiff's covenants, insisted on by the defendants, going only to a part of the consideration; and Ritchie v. Atkinson (a) was relied on. Montague Smith, contrà. The stipulations on the part of the plaintiff are either conditions precedent or condi (a) 10 East, 295. (c) 4 Bing. 409. (e) 1 Wms. Saund. 320 d, note (c). (b) 6 T. R. 570. (g) 4 M. & W. 295. Affirmed, on error, in Exch. Ch.; Chanter v. Leese, 5 M. & W.698. (h) 3 New Ca. 355. tions concurrent. In the former case, the declaration is Queen's Bench, bad for not averring that the plaintiff had performed 1846. GILES V. GILES. 1846. GILES V. GILES. Volume IX. of the act is a condition precedent to the payment." Glazebrooke v. Woodrow (a) is a strong authority for the defendant. No time for the payment by the defendant is here pointed out in the agreement, except the performance of the stipulations by the plaintiff. Even if the times were to be coincident, readiness should be shewn, as in Jones v. Barkley (b). If that averment were struck out, no breach could appear. [Patteson J. If the defendant had sued the plaintiff for non-performance, must the declaration have averred readiness to pay?] It should seem not: but, supposing that it must, the conditions are concurrent, and the pleas here answer the declaration. According to Goodisson v. Nunn (c) and Chanter v. Leese (d), the performance by the plaintiff here was a condition precedent. Butt, in reply. The argument, that no time for the payment is fixed by the agreement, fails; for in all such agreements a reasonable time will be intended. [Wightman J. At what time were you bound to release?] Whenever required. The right to insist upon each of the plaintiff's stipulations separately formed the whole consideration; and, as in Hall v. Bainbridge (e), the result is that the conditions were independent. The words "upon the plaintiff" "so quitting" &c. are insisted upon but they are not stronger than the words in Boone v. Eyre (g). (a) 8 T. R. 366. (c) 4 T. R. 761. Cur. adv. vult. (b) 2 Doug. 684. (d) 4 M. & W. 295. Affirmed, on error, in Exchequer Chamber. Chanter v. Leese, 5 M. & W. 698. (e) 5 Q. B. 233. (g) Note (a) to Duke of St. Albans v. Shore, 1 H. Bl. 273. Econe v. Eyre, 2 W. Bl. 1312. |