The opinion of the court was delivered by

Upon demurrer in this form it is the well-settled rule that judgment will be given against the party whose pleading is first defective in substance. 1 Chitty’s PI. 668.

Upon the record before the court, it appears to me clear that the first fault is in the special plea of the defendant, which is defective both in substance and in form.

And first as to the form of the plea. It answers, in particulars, the special matter in the first count, but is framed in denial of the whole declaration, which includes the common counts also. Such pleading is bad. 1 Chitt's Pl. 524; Conover v. Tindall, Spencer 518. The matters contained in the special plea are no answer to the common counts.

But the plea is also defective in substance. The contract declared on is without stipulation of time for the payment of the money. It was, therefore, without credit, and due immediately. The plaintiff’s right of action was complete as soon as the agreement was made. The idea of the defendant, expressed in his plea, appears to be that as one year in time was given for the removal of the sand, therefore he had all of that time to pay the purchase money — §600—-and that if he paid, as he alleges ho did, as fast as the sand was taken from the *410lots, he did all that his agreement required, and that if the plaintiff sold the lots before the expiration of the year, and he was thereby hindered in excavating and removing the sand, the contract was broken, and he was discharged from further payment. His difficulty, however, is, that there are no such terms in the agreement, and the law will not imply them. There is no statement of any conditions upon which the payment shall be made, or provision for a delivery of the' article sold, nor time or method of payment. The delivery and payment are not to be concurrent, nor is the delivery in whole or in part to precede the payment. There are, therefore, no mutual stipulations or agreements dependent on each other for performance. They are wholly independent ; and although relating to the same subject and made by the same parties, and included in the same contract, they are two separate contracts Each party must perform what he has undertaken, without reference to the discharge of his obligation by the other party and each party has his action against the other for the non-performance of his agreement, whether he has performed his own or not. 2 Parsons on Con. 40, 41, and note ; Story on Sales 403, 300, 416 ; Addison on Con. 865, 866; Hilliard on Sales 113, 177; Pordage v. Cole, 1 Saund. 319, and notes.

This conclusion makes it unnecessary to consider whether the replication of the plaintiff is bad or not, for in either case the demurrer must be decided upon the validity or invalidity of the former pleading.

Judgment must be entered for the plaintiff.

Cited in Salt Lake Nat. Bank v. Hendrickson, 11 Vr. 56,