Tennessee Superior Court for Law and Equity, 1807

M'farland v. Hughling

Tennessee Superior Court for Law and Equity · Decided December 6, 1807 · Overton

1 Tenn. 263

Counsel

STUART, for the defendant, offered several witnesses to prove that the plaintiff had not put the houses, c, in repair, which it was insisted was a covenant precedent, and that the plaintiff must show that he performed his part before he could recover. DICKINSON cited 6 Bac. 402, 247; Guil. ed. Co. Lit. 218; Fra. Max. Eq. 41; 1 H. B. 273; Pow. Cont. 259, where a covenant only goes to a part of the consideration, there they must be independent. STUART argued, e contra, that the agreement was not in prœenti; the words "doth agree to lease," shows it to be only an agreement that he would lease, and insisted that as performance was averred in the declaration, the plaintiff ought to prove it, or he cannot recover.

Opinion of the Court

*264 Overton, J. and Powell, J.

were inclined to think that these covenants were dependent, and not mutual, upon which a jury found a verdict for the defendant. Upon further consideration this opinion was found to be incorrect, and a new trial was granted.

Vide in relation to covenants dependent and independent,

1st. As regarding the intention, 1 T. Rep. 645.-6 T. Rep. 668, 57. 7 T. Rep. 130.

2d. When a day is stated for the performance of a covenant, which performance is the consideration with the other party, and this day may, or is certain to happen before the time of performance by the other party, the covenants are independent. Vide 1 Salk. 170. 1 Ld. Ray. 665. 1 Lutw. 250. 12 Mod. 461. 1 Vent. 177. Peters vs. Opie. 1 Salk. 113, 2 H. B 3 89. 6 T. R. 572.

3d. Where a day is appointed for performance,which is to happen after the thing, (which is the consideration of the performance) is to be done, no action lies before the thing is done. 1 Salk. 171. 12 Mod. 462. 1 L. Ray. 665. 1 Lutw. 251. Dyer 76, pl. 30.

4th. Where a covenant goes to a part of the consideration on both sides, and a breach may be compensated in damages, it is independent. 1 H. B. 273, 279. 6 T. R. 573.

5th. Covenants going to the whole consideration on both sides, are dependent, and performance must be averred. 1 Vent. 147. 1 H. B. 270.

6th. When two acts are to be done at the same time, it is dependent as to both, and performance must be averred and proved by the plaintiff, so as to enable him to sustain an action. 1 Salk. 112. 2 Salk. 623. Doug. 684, 691. 4 T. Rep. 761. 6. T. Rep. 665. 7 T. Rep. 125.

At December term, 1808, verdict for the defendant.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.