The opinion of the court was delivered,

This case turns upon the true interpretation of the agreement between Isaac Eegely and William D. Evans, of the 6th of April 1864. It is an agreement of two parts udder the respective hands and seals of the parties. The covenants are clearly several and distinct, each party covenanting with the other for those things , he should perform. Eegely, on his part, covenants with Evans that “ if such damages (those mentioned in the preamble) are not recovered from me, nor I meet with any accident by fire amounting to more than $2000, while the present car-work is on hand, I will pay or cause to be paid by the said W. D. Evans, his heirs, executors or assigns, the sum of $1000, in two years from the date hereof, or sooner if determined,” &c. Then follows a provision for interest. Here the covenant of Eegely ends, and his liability on his own covenant is definitely fixed, subject to the two conditions as to damages and fire. Then we come to the separate and distinct covenant of Evans with Eegely, by which he agrees “ that in case the said Isaac Eegely does not realize the sum of $7000 out of the real estate, or the valuation by three disinterested men at the expiration of that time, should not amount to that sum clear of improvements made ly Isaac Pegely, then the said William D. Evans is to relinquish his claim to $1000.” Now this covenant on part of Evans is not only distinct from the covenant of Fegely .to pay on the two conditions named, but is different in its subject. If we examine this subject we find' it to be one wholly within the knowledge of Eegely alone. Who but he can know whether he has realized $7000 from the real estate, or what the cost of the improvements made by him ? If he has not realized the required sum, or if the property clear of the improvements be less than that sum in whole, clearly it is his duty to notify Evans of the fact. Undoubtedly, in the absence of notice to the contrary, Evans has a right to suppose that no third condition of recovery will be injected into the covenant of Eegely to pay the $1000. The fact that Eegely did not make it a third condition in his covenant to pay, proves that it was intentionally reserved for the covenant of Evans, which is one of simple relinquishment. He covenants to relinquish the $1000, but when ? Clearly only when it appears that Eegely has not realized his $7000, or that the value of the real estate less the cost of improvements is not $7000. Now this made Eegely the actor. Not having exacted it as a condition of his own covenant, he was bound to give notice to Evans that the property had not realized the required sum if sold; or if not sold, to demand a valuation in the mode expressed by Evans’s covenant. It is not to be presumed that Evans, who had left the township, should know the affairs of Eegely. The latter was the only party who could know the state of his affairs) the condition of the property, what *373improvements he had made, and how much they had cost. He therefore must be presumed to know of the happening of the contingency on which the covenant of Evans was to be performed, and was bound to give notice of it and demand a relinquishment. Thus the separate character of the covenant, its independence of the conditions reserved by Fegely as the terms of performance of his own covenant to pay, the language of Evans’s covenant “ to relinquish,” and the nature of the subject, threw upon Fegely the duty of giving notice of the happening of the contingency, and of demanding an appraisement. The burthen of proof therefore lay on him and not on Evans. . There was no reason that he should object to Evans taking the laboring oar, and clearly the court erred in taking the case from the jury.

The judgment is therefore reversed, and a venire facias de novo awarded.