Barruso against Madan, 2 Johns. 145

Spencer, J. delivered the opinion of the court. The validity of the first plea depends upon this fact, whether, from the contract, it was necessary that the plaintiff should select or designate the merchandise, suitable for the enterprizc, before the defendant provided the vessel. The defendant’s counsel insist that the selection of the goods was a condition precedent.

With respect to such conditions, it is true, that no technical words are requisite to render a stipulation a condition precedent or subsequent, nor does it depend on the position of words, but it rests on the good sense and plain understanding of the contract, and the acts to be performed by the parties respectively. Testing this plea, and the covenant it refers to, by these rules, I cannot say that the selection of the goods was to be an antecedent act. The selection of the goods would be nugatory without a vessel to transport them.

The defendant’s act was the first in order of time, and it ivas incumbent on him to have alleged that he had provided a vessel within the month, which could not proceed, because the plaintiff had failed in his part of the contract ; the selection of the goods was not

an act necessary to be done before the vessel was furnished, and is therefore an independent covenant. This plea, which puts, the defence on the ground that it was a dependent covenant, cannot be supported. The 4th plea is manifestly bad. The defendant at. tempts to excuse himself for not fitting out the first vessel, by

an act posterior to the time when it should have been ready. The writing declaring the contract to be null, was an unnecessary act, because the contract itself contained that provision ; still it reserves the right to prosecute for damages, and this writing does not take away that right; it is merely an affirmace of the provision in the agreement. It was urged, on the argument, that the particular damages sustained by the plaintiff should have been alleged in the declaration, and that not being doné, the first fault in pleading originated with him, and of course he could not have judgment.

The damages sustained are matter of evidence, and need not be alleged, norarethey scarcely ever stated, but in a general manner. We are therefore of opinion, that the plaintiff is entitled to judgment. Term, 645.