Leveret v. Sherman

The two preceding cases were heard and tried by the court together, and upon the evidence, the court fotmd that neither of the parties had performed or made any tender of performing their parts of the agreement. The question then came up, whether, as they were mutual covenants, one was the consideration of the other; and so a performance not necessary to be laid in the declaration, nor to be proved on the trial.

The defendants, in the first action, insisted that the plaintiff, by the stipulations in the agreement, was to do the first act, viz. was to quit the store, etc. and to give a deed of the premises the then next spring; when, and not till that was done, did the duty of paying arise; but it was the opinion of the court, that by the terms of the contract; the quitting the store, etc. and giving a deed of the premises, the then next spring, when half of the price was to be paid, were concurrent, concomitant acts, to be performed by each of, the parties at the same time; and that neither had right to recover, without a performance of his or their part of the agreement, or at least an offer to perform it. . I