James Tinney versus Benjamin Ashley et al., 15 Pick. 546

Wilde J. drew up the opinion of the Court. The pleadings in this case have been multiplied to an unusual, and as it seems to me, an unnecessary extent. But some of the pleas have been waived, and as to some others, the defendants have had leave to amend ; so that a few general questions only remain now to be decided. The first question to be considered, and which is probably the first in importance, relates to the sufficiency of the declaration, as to the 3d, 4th, 5th and 6th counts The 3d and 4tli counts depend on nearly the same principles.

I shall advert, therefore, only to the 4th count; for if that is sufficient, as we think it is, the 3d count is also sufficient In the 4th count the plaintiff avers, that within a reasonable lime after the date of the bond, he did at his own expense select and survey the lots of land to be conveyed ; and that of this the defendants within a reasonable time had notice ; and that the plaintiff, then and there, demanded of them a good and sufficient warranty deed thereof, and was then and there ready to deliver up to the defendants the said bond, yet that the defendants had never executed and delivered to the plaintiff a deed Stc., according to the tenor of said bond and the recital and condition thereof, but had neglected so to do.

To this count the defendants’ counsel have made two objec tians. The first is, that it ought to have been averred, that the selection was made, and the notice thereof given to the defendants, within two years from the date of the bond. And the second is, that the plaintiff should have averred that he tendered or offered to give up to the defendants the bond, and tendered a deed for the defendants to execute.

As to the first objection, the Court is of opinion, that by the true construction of the condition of the bond, the plaintiff was not bound at all events to make the selection and survey, and to give notice to the defendants, within two years after the date of the bond. The words relied on by the defendants’ counsel are, “ and it is expected that the said Tinney shall complete his selection within two years.” But this clause does not import, that it is to be done, at all events, and notwithstanding any obstacles and difficulties that might intervene.

The contrary is to be inferred, for if it had been intended as a positive stipulation, different language would have been used, and the defendants’ liability would have been made to depend upon the performance of the condition on the part of the plaintiff within the time. The averment, therefore, that the selection was made, and notice given to the defendants, within a reasonable time, is sufficient. If it was not so made, the defendants will have the benefit, on their plea, in which that averment is traversed.

With regard to the second of these objections, whatever doubts may have been formerly entertained, we think the law as now understood will not sustain the objection. Where concurrent acts are to be performed by the parties at the same time, the party suing for damages for the non ■ performance by the other party, is only required to aver that he was ready and willing to perform the agreement on his part, and that the defendant was requested to perform the agreement on his part, but refused or neglected so to do. This was decided in the case of Rawson v.

Johnson, 1 East, 208, in which the former cases were considered and such an averment was held to be sufficient. It was argued for the defendant, that it was not enough to be ready and willing to perform, unless that was made known to the other party; but this objection was overruled, and, as we think, upon sound and satisfactory reasons.

When one party demands of the other the performance »f a mutual agreement, by which concurrent acts' are to be performed by each party, an offer on the part of the party making the demand, to perform his part of the agreement, is implied and understood ; and when the other party refuses to comply, he thereby dispenses with any other offer. And where he neglects to comply, without offering any reason for his noncompliance, the legal effect is the same. In the 4th count, however, a neglect and refusal are both alleged.

As to the other part of the objection, that it was incumbent on the plaintiff to prepare a deed for the defendants to execute, we think it clearly was not. The defendants contracted to execute and deliver a good and sufficient deed, and it is incumbent on them to do whatever was necessary to the performance of their contract. If the law in England is otherwise, it must be founded on custom and practice and not on any legal principle independently of practice. We are next to decide as to the sufficiency of the 5th and 6th counts. And we are of opinion that they are manifestly insufficient.

The defendants agreed to give a good and sufficient warranty deed of the lots selected, and nothing more. The words “good and sufficient ” relate only to the validity of the deed to pass the title, which the defendants had, to the plaintiff, and do not imply that their title was valid, or that it was free from incumbrances. To guard against any defect of title a covenant of warranty was provided for ; which shows clearly, that the agreement was so understood by the parties. If any authority were necessary to support so plain a construction of the contract, the case of Gazley v. Price, 16 Johns.

R. 268, will be found full and decisive as to this point. From the remarks already made as to the sufficiency of the 4th count, it follows that the 9th and 10th pleas are bad ; and it only remains for us to decide as to the sufficiency of the 2d plea. And this probably is of little importance, as the averments in the 1st count, to which the plea relates, are specially traversed in other pleas. We have, however, no doubt that this plea is bad, for the cause assigned in the special demurrer. In general, a plea of performance of a condition, must show specially the manner of the performance.

The exception is, where the matter is of so intricate and complicated a nature, or embraces such a variety of minute circumstances, that a particular statement would cause great prolixity ; which the law does not countenance. 1 Chitty on PI. (5th Eng. edit.) 567. Thus where the condition is to return all writs, or to account for all moneys received &c., a general performance may be well pleaded. Story on PI. (1st edit.) 154. But if the condition be to perform a specific act, as is the present case, a special performance must be pleaded.

The 2d, 9th and 10th pleas adjudged bad; the 20th, 21 st, and 22d pleas adjudged good.