Bailey, use, &c. v. White, 3 Ala. 330

COLLIER, C. J. Covenants are either dependent, concurrent, or mutual and independent. The first depends on the prior performance of some act or condition, and until the condition is performed, the other party is not liable to an action on his covenant. In the second, mutual acts are to be performed at the same time, and if one party is ready, and offers to perform his part, and the other neglects, or refuses to perform his, he who is ready and offers, has fulfiled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act.

The third sort is, where either party may recover damages from the other for the injury he may have received by a breach of the covenants in his favor; and it is no excuse for the defendant to allege a breach of the covenants on the part .of the plaintiff. Platt on Cov. 71; 7 Petersd. Ab. 105; Pordage v. Cole, 1 Saund. Rep. 319, 320, note 6. Though rules have been laid down, by which to test the character of covenants, yet it is said to be difficult to furnish any clear and precise rule by which the distinction between covenants and conditions can be accurately ascertained.

Some of the old cases recognised distinctions too nice and refined fo be understanding!}' applied, running counter, it is said, to the meaning of the parties, and the real justice of the case; but the rule laid down by Lord Mansfield, and now established, is, that the dependence or independence of covenants, is to-be collected from the evident sense and meaning of the parties; and that however transposed they may be in the deed, their prece-dency must depend on the order of time in which the intent of the transaction requires their 'performance. Platt on Cov. 71, et post; Powers, et al. v. Ware, 2 Pick.

Rep. 451; Goodwin v. Linn, et al. Wash. C. C. Rep. 714. In Glazebrook v. Woodrow, 8 T. Rep. 366, the plaintiff covenanted that he would convey on or before the first of August, and the defendant, that he would pay on or before the same day, the Court held that the covenants were dependent, and that to entitle the plaintiff to recover, a conveyance, or an offer to convey, should have been alleged and proved. See, also, Goodisson v. Nunn, 4 Term Rep. 761.

And it may be laid down as a general rule, where the consideration is to be performed. before the day specified for the payment of the money, the performance of the consideration ought to be averreddn an action for the money; or where two acts are to be simultaneously done, as where one party is to pay a sum of money on the same day on which the other is to convey an estate, as the consideration for the payment, neither can maintain an action without showing a performance, or an offer to perform on his part. Russell v. Ward, Wm. Jones’ Rep. 218; Pordage v. Cole, 1 Saund. Rep. 320, note 6; Clay v.

Straughan, 5 Monroe’s Rep. 386; Tomkins v. Elliott, 5 Wend. Rep. 496; Slocum & Hogan v. Despard, 8 ibid. 615; Fairfax v. Lewis, 2 Rand. Rep. 20; Benson v. Hobbs, 4 Har. & Johns. Rep. 285; Northup v. Northup, 6 Cow. Rep. 296. In a declaration in covenant, it is sufficient to state the deed according to its legal effect ahd operation. Swallow v. Beau-mount, 2 B. & A. Rep. 765; Backus v. Taylor, 6 Munf. Rep. 488; Bustors, Ex’r. v. Wallace, 4 Hen. & Munf. Rep. 82.— And in Jackson and another v.

Sagacer, 3 Monroe’s Rep. 27, the plaintiffs in error promised to pay “ Sagacer or assigns, four hundred dollars worth of merchantable whiskey, in good casks, as specified in our agreement of this date, at forty-two cents per gallon,” and the question was, whether the agreement referred to in the covenant, should have been stated in the declaration. The Court held there was no necessity for setting forth in the pleadings any other agreement, than that contained in the covenant itself.

In respect to the allegation of a breach, it may be assigned, either in the words of the covenant, or according to the intent and meaning of the parties. Boscawen, et al. v. Cook, 1 Mod. Rep. 223; Griffith v. Goodhand, T. Jones’ Rep. 191; S. C. Skinner’s Rept. 39; Bristock v. Stanton, 1 Ld. Raym. Rep. 106; Quackenboss v. Lansing, 6 Johns. Rep. 49; Bustors, ex’r. v. Wallace, (Supra) Day, et al. v. Chism, 10 Wheat. Rep. 449. If, in declaring on a covenant, a material

part is omitted, the defendant may take advantage of the omission by craving oyer and demurring. Gardner, et al. v. Gardner, et al. 10 Johns. Rep. 47; Santavord v. Sanford, 12 ibid. 197; Kane v. Sanger, 14 ibid. 89; Dunham v. Pratt, ibid. 372; Henry v. Cleland, ibid. 400; Asberry v. Calloway, 1 Wash. Rep. 72; Legg v. Robinson, 7 Wend. Rep. 194; Mayor and Aldermen of Tuskaloosa v. Lacy, at this term. It now remains to apply the principles we have stated to the case before us.

The parties, we think, have very intelligibly expressed their intention; and their contract may be thus stated: the defendant undertakes to pay to the plaintiff the sum of two hundred dollars, on the first of January, eighteen hundred and thirty-seven, if the latter would deliver to the former the possession of the plantation on which he resided at the time the contract was ma'de, on the- first day of January, eighteen hundred and thirty-six: Provided, however, that the defendant might discharge his obligation to. pay the money, by permitting the plaintiff to retain the possession of the plantation until the day appointed for its payment.

This exposition of the covenant'seems to us very clearly to result from the terms in which it is expressed; for although a day certain is mentioned when the money is to be paid, yet the obligation to pay, is only to become absolute upon the prior performance of a condition, viz: the delivery of the possession of the plantation, which the deed asserts was the agreement between the parties. In this view of the case, the covenant of the defendant is dependent, and cannot be coerced, unless the plaintiff has performed, or offered to perform the condition.

But suppose it be conceded that the payment of the money and delivery of possession, were acts to be simultaneously done, and then as we have seen, the plaintiff could not recover without avering and proving an offer of performance on his part. According to no rule of

interpretation can the undertaking of the' defendant be regarded as independent of any act to be done by the plaintiff. The covenant of the plaintiff does not profess to be made in consideration of an engagement by the defendant to perform his part of the contract, but in consideration of its actual performance, and according to the principles laid down, does not impose an absolute legal duty.

In his declaration, the plaintiff should have alleged a delivery of the possession of the plantation, or an offer to deliver it, to have entitled himself to recover the two hundred dollars; and if the obligation to pay was dischaged by the permission to occupy it during the year of eighteen thirty-six, the defendant should have shown it as an affirmative fact, going to avoid his undertaking. The covenant itself being sufficiently explicit to show the meaning of the parties; there was no necessity for setting out, on the part of the plaintiff, the agreement or deed to which it refers.

From what we have said, it follows, that the declaration falls short of stating the covenant, according to its legal effect. But it is insisted that the Circuit Court should not have rendered a final judgment upon sustaining the demurrer to the declaration, but an opportunity should have been afforded to the defendant to amend. By the act of 1824, “ to regulate pleadings at common law.” Aik.

Dig. 277, — it is enacted that “ no demurrer shall have any other effect than that of a general demurrer, and the Courts at any time previous to the term at which such demurrer shall stand for argument, may allow the party, on application, to amend his pleadings, without terms, and after judgment in favor of the demurrer, may authorise an amendment, on terms,” &c. It was certainly proper if the plaintiff applied, for leave, to have permitted him to amend his declaration “ on terms,” after the demurrer was sustained, but the record does not show that he was denied that privilege, and we cannot presume that he was.

Where an application to amend is refused, a revising Court can only be informed of it by the record. We have only to add, that the judgment of the Circuit Court is affirmed.