Northrup v. Northrup
New York Supreme Court
Ok demurrer to the defendant’s plea. The plaintiff declared on a covenant, which, on oyer, was as follows : The defendant covenanted to pay certain rent due and in arrear, to one D. Tomlinson, on a certain farm, and all which should become due on the 25th of March, 1825; the whole to be paid on that day ; and the plaintiff covenanted, that on the defendant’s so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage.
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Ok demurrer to the defendant’s plea. The plaintiff declared on a covenant, which, on oyer, was as follows : The defendant covenanted to pay certain rent due and in arrear, to one D. Tomlinson, on a certain farm, and all which should become due on the 25th of March, 1825; the whole to be paid on that day ; and the plaintiff covenanted, that on the defendant’s so paying the rent, he, the plaintiff, would give up and discharge a certain bond and mortgage. The action was for not paying the rent at the day. Plea, that the plaintiff did not, on the 25 th day of March, 1824, give up and discharge…
1Opinion of the Court
Curia, per
Savage, Ch, J.
The plea is bad. The payment of the money to Tomlinson, on the day specified, is clearly a condition precedent. The performance by the plaintiff of his part of the agreement is not necessarily simultaneous ; but was naturally to be subsequent. A general averment of his readiness to perform, is all that *297can be necessary or proper. To aver a tender was certainly not necessary.
Lord Mansfield, in Jones v. Barkley, (Doug. 690,) makes three classes of covenants ; 1. Such as are mutual and independent, where separate actions lie for breaches on either side ; 2. Covenants…
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- Acer v. . HotchkissNew York Court of Appeals · 1884
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