Tompkins v. Elliot
New York Supreme Court
Demurrer to plea. In March, 1828, the parties entered into a written agreement, by which the plaintiff transferred to the defendant all his right to the first crop of ninety acres of land cleared by the plaintiff for General Morgan Lewis, and agreed to have the land cleared and fenced as fast as the defendant should require to sow, and to take all the young cherries and elders off of the land; and if he failed to clear and fence the land as fast as the defendant should…
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Demurrer to plea. In March, 1828, the parties entered into a written agreement, by which the plaintiff transferred to the defendant all his right to the first crop of ninety acres of land cleared by the plaintiff for General Morgan Lewis, and agreed to have the land cleared and fenced as fast as the defendant should require to sow, and to take all the young cherries and elders off of the land; and if he failed to clear and fence the land as fast as the defendant should require, he agreed to pay the defendant all the damages he should sustain. The defendant, on his part, agreed to pay the…
1Opinion of the Court
By the Court,
Savage, Ch. J.
The question is whether the performance of the plaintiff’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independent. It has been well remarked by Sergeant Williams, in his note to Pordage v. Cole, 1 Saund. 320, n, 4, that almost all the old cases, and many of the modern ones on this subject, are decided upon distinctions so nice and technical, that it is very difficult, if not impracticable, to lay down any general principle by which to determine what covenants are independent and what…
2Cited by31 opinions
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- Underhill v. Saratoga & Washington Rail RoadNew York Supreme Court · 1855
- Hamlin, Hale & Co. v. RaceIllinois Supreme Court · 1875
- Campau v. CheneMichigan Supreme Court · 1850
- Leopold v. SalkeyIllinois Supreme Court · 1878
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