:

is bound to do the act which is to discharge him: Co. Lit. 211, a. 210, 220; Chit. Pl. 309; Cranley v. Hilary, 2 M. & S. 120. As, if a party has to pay a sum of money, a mere readiness to do so is not sufficient he is bound to go to the party entitled to receive it, and [*128] pay, or tender, the money, in order to exonerate "himself from liability id. Co. Lit. 340; Soward v. Palmer, 2 Moo. 276. A tender or offer to perform, which the deft. rejected, is in law as good as an actual performance of a condition precedent. So is a readiness to perform, if the party discharged the other from performing, or prevented the execution of the matter to be performed: 1 Saund. 320; Hothom v. E. I. Comp. 1 T. R. 638; Smith v. Wilson, 8 East, 443; Jones v. Barkley, Dougl. 686. In assumpsit by the vendor against the vendee of land, for not accepting it, and paying the purchase-money, the plt. averred that he was seised in fee of the land, and that deft. agreed to purchase it, on having a good title; and that his title to the land was made good, perfect, and satisfactory to the deft.; and that he, the plt., had been always ready and willing, and offered to convey the lands to the deft.; but that deft. did not pay the purchase money: and, on demurrer, it was held, that such general allegations of title in the plt., and that his title was made good and satisfactory to the deft., and that the plt. was ready and willing and offered to convey to the deft., were tantamount to performance of agreement on his part, so as to entitle him to recover for a breach of the deft.'s part, in not paying the purchasemoney: Martin v. Smith, 6 East, 555. The deft. purchased a leasehold estate of the plt. at a public auction, subject to certain conditions of sale, which were, "that the purchaser should immediately pay down a deposit in part of the purchase-money, and sign an agreement for the payment of the remainder within twenty-eight days from the day of sale, when possession should be given of the part in hand; and that the purchaser should have proper conveyances and assignments of the leases, without requiring the lessor's title, on payment of the remainder of the purchase money." Assumpsit was brought by the vendor against the purchaser, for the non-payment of the conditions on his part, after a verdict for the plts., on a motion in arrest of judgment, on the grounds that the plts. had not set out their title, or tendered the conveyances to the deft. it was held that the plts. were not bound to set out their title; and that allegations that they were ready and willing, and actually offered to convey, were equivalent to a performance of the conditions on their parts: Ferry v. Williams, 8 Taunt. 62; 1 Moo. 498, s. c. If there was a place appointed for the plt. and deft. to attend for performance of their mutual acts, an averment of non-attendance by deft. would dispense with an averment of performance by plt.: Morton v. Lamb, 7 T. R. 129, 31; Bordenave v. Gregory, 5 East, 107; 2 B. & B. 233. Where the respective acts to be done by the plt. and deft. are mutual, and were to be performed at the same time, a mere readiness by plt. to perform his part, of which deft. had notice, is in general sufficient; or plt. may state an excuse for performance, by reason of deft.'s refusal to perform his part, or his discharge of plt. from his performance: Jones v. Barkley, Dougl. 684; Seymour v. Gartside, 2 D. & R. 55. As, where, in an action of assumpsit for not delivering bonds and other se

curities pursuant to an agreement, where the consideration-money was to be paid on the receipt of the securities, it is not necessary to aver an actual tender of the money; an allegation of plt.'s readiness to perform is sufficient: Levy v. Herbert, 1 Moo. 56; Morton v. Lamb, 7 T. R. 130. In an action for the non-delivery of malt, which deft. had undertaken to deliver on request at a certain price, it is sufficient for the plt., in his declaration, to aver such request, and that he was ready and willing to receive the malt, and to pay for it according to the terms of sale; but that deft. refused to deliver it, without averring an actual tender of the price: Rawson v. Johnson, 1 East, 203.

On the other hand, where the deft. has agreed to pay for a copyhold estate, upon receiving a good title, and a proper surrender, in an action for the money, it will not be sufficient to aver an offer to make a good title, but the plt. must show that he furnished an abstract of a good title to deft., and offered to surrender, &c., but that the deft. refused: Phillips *v. Fielding, 2 H. Bla. 123. And in an action on a [*129] contract for stock, the plt. must aver either an actual tender and refusal of the stock, or that which is equivalent to it, viz. an attendance at the place of transfer until the last moment at which transfers are made, on the day appointed, and a notice given to the deft. that he might then and there attend to receive it, and a neglect or refusal on the part of the deft. to do so: Bordenave v. Gregory, 5 East, 107; Giles v. Hart, 2 Salk. 623; Lancashire v. Kellingworth, Com. R. 116; D. of Rutland v. Hodgson, 2 Str. 777; Merrit v. Rane, 1 ib. 458; Clark v. Tyson, ib. 504; Thornton v. Moulton, ib. 533. The performance of a condition or contract is not excused, where the prevention of such requisite performance arises from a mere stranger: Worsley v. Wood,6 T. R.

710.

If a party entitled under a contract to receive a profit from another, by his own acts so confounds the measure of that which he was to receive, that it can no longer be ascertained, he vacates his whole claim; as, where A. agreed to find sufficient coal for B.'s engine to draw water from A.'s mine, and B.'s little coal mine, as they then stood; and B. sunk to a lower seam, in draining which he drained the other two seams, but consumed for his engine more coal than before, it was held that A. was no longer bound to furnish any coal, because B. had destroyed the measure of sufficiency: Pringle v. Taylor, 2 Taunt. 150.

There are some cases, where the thing agreed to be done having been in effect performed, though not in the exact manner, nor with all the circumstances mentioned, it has been deemed a substantial performance, Worsley v. Wood, 6 T. R. 722: as, where a condition was to enfeoff, a conveyance by lease and release has been deemed sufficient, Co. Lit. 207, a.; so, if the condition be for one to deliver the will of the testator, and he delivers letters testamentary: 1 Rol. Ab. 426, pl. 2, 4; Poynter v. Poynter, Cro. C. 194.

Where the law casts a duty on a party, the performance is excused if rendered impossible by the act of God; but where a party, by his own contract, engages to do an act, it is deemed to be his own act and folly that he did not thereby expressly provide against contingencies, and exempt himself from responsibility on certain events; and, in such case,

therefore, it is in the nature of an absolute and general contract; the performance is not excused by an inevitable accident, or other contingency, although not foreseen by or within the control of the party: Hadley v. Clarke, 8 T. R. 267; Maryon v. Carter, 4 Carr. & Payne, 295; Com. D. Ass. G., Chit. Cont. 273.

"A statute will sometimes excuse the performance of a contract: as, where a person contract not to do a thing which it was lawful for him to do, and an act of Parliament comes after, and compels him to do it, there the act repeals the contract, and vice versa; but, where a man contracts not to do a thing which was unlawful at the time of the covenant, and afterwards an act makes it lawful, the act does not repeal the covenant:" Brewster v. Kitchin, 1 Ld. Raym. 321; Touteng v. Hubbard, 3 B. & P. 301; Jacques v. Withy, 1 H. Bla. 65; Barber v. Hodgson, 3 M. & S. 270.

Form of Averments of Performance, or Excuse for Performance.] Averments should be formally stated by an express allegation; as, "that plt. avers," or "in fact saith:" Com. D. Pleader, Č. 77; 1 Saund. 117, n., 235; 2 ib., 61, g. And, when an express averment of performance is necessary, plt. must aver it with time and place, when and where it was done, and the performance must be precisely alleged, and with reasonable certainty, that the court may judge whether the intent of the contract has been duly performed: as, on a contract in consideration that plt. would acquit A. of a debt, it is not sufficient to say that he acquitted him, without showing how; viz. by deed: Lenerit v. Rivet, Cro. J., 503; Com. D. Pleader, C. 60; sed quære. But, in general, it

suffices to state it in general terms, without alleging the particu[*130] lars of the performance: as, on a promise to pay so much as the plt. should expend for the officers of the army in such a suit, an averment that he spent so much is sufficient, without showing for what officers in particular: Com. D. Pleader, C. 61; Jermy v. Jenny, T. Raym. 8, 9. In a declaration on a contract to pay so much if the plt. would marry deft.'s daughter at his request, an averment that he did marry her, without saying at the deft.'s request, is sufficiently certain: Poynter v. Poynter, Cro. C. 194. The performance must be averred to have been according to the agreement and intention of the parties, Jermy v. Jenny, T. Raym. 8, 9, Com. D. Pleader, C. 61: as, on a promise in consideration that the plt. would cause A. to come to be bound to the deft. for £20, it is not sufficient to aver that the plt. caused A. to come to be bound, but it ought also to be alleged that A. was bound: Com. D. Pleader, C. 58; Game v. Harvie, Yelv. 50. An exact performance, according to the intention of the parties, must also be stated: Com. D. Pleader, C. 59; Dorrington v. East, Yelv. 87. When an exact performance is not necessary, ante, 129. Where the contract is in the disjunctive, the averment of performance should be so, and not in the conjunctive; and, if the agreement be in the conjunctive, the averment should pursue it. But, after verdict, if a conjunctive expression may, by any construction be taken disjunctively, according to the contract, the court will so construe it: Burgess v. Brazier, 1 Str. 594. It is usual, in declarations on mutual promises and in covenant between land

lord and tenant, &c., to aver that the plt. hath performed all things on his part to be performed; but this is unnecessary, 1 Saund. 234, c. n. 5; though it may after verdict aid the omission of an averment of a special performance: Thorpe v. Thorpe, Lutt. 253; Sir T. Jones, 125, 1 Chit. Pl. 282. Where an averment of performance is necessary, the plt. must not only aver that he was ready and did all he could to perform it, but must allege the particular circumstances which prevented him from so doing. It is insufficient to allege that he or another could not perform it without showing why or by what means they were prevented: Coppice v. Hurnard, 2 Saund. 129.

Consequences of Omission or Mistatement of Averment of Performance, &c.] If an averment of performance, when essential, be entirely omitted, it may be taken advantage of on motion in arrest of judgment, after judgment by default, Collins v. Gibbs, 2 Burr. 899, or even after verdict: Worsley v. Wood, 6 T. R. 710; 1 Chit. Pl. 285. But, if it be merely informally alleged, it cannot be taken advantage of after plea pleaded, 12 Mod. 460, or after verdict: Burgess v. Brazier, 1 Str. 594. And the declaration will always be sustained after verdict, if it appear upon the whole record that there has been a substantial performance of all the considerations declared on: Lee v. Edwards, 1 Vent. 44; 1 Lev. 280, s. c.; and see, supra, as to averment of general performance.

Averment of REQUEST-When necessary.] When it is essentially necessary, by the terms of the contract, that the deft. should be requested by plt. to perform his part of the contract, such request, being a condition precedent, must be specially alleged in the declaration, and proved : Com. D. Pleader, C. 69; 1 Saund. 33, n. 2. It is a general rule, that where a mere duty or sum of money, which the deft. is in duty bound to pay, is promised to be performed or paid on request, there needs no actual request; but, where a collateral duty or sum is promised to be performed or paid on request, there must be an actual request, Birks v. Trippet, 1 Saund. 33, a., or some averment to excuse it: Amory v. Brodrick, 5 B. & A. 712; 1 D. & R. 361, s. c. And Abbott, C. J., in that case, said, "a party is only bound to allege a request where the object of that request is to oblige another to do something." Thus, where a party promises to pay on request money previously due, plt. need not make or aver a request to pay: B. N. P. 151, [*131] b. The bringing of the action would, in that case, be a sufficient request: Simpson v. Routh, 2 B. & C. 683; Wallis v. Scott, 1 Str. 88. And, where the debt or duty arises immediately on the performance of the consideration, no request need be stated: as, where the declaration stated that the deft., in consideration plt. would make him a set of sails worth £45, promised to pay so much for them on request, it was held, no request to pay was necessary to be stated, because, on the making of the sails, the money immediately became due: ib., Bokenham v. Thacker, 2 Vent. 75. And, though a distinction was formerly taken between a promise by the deft. to pay a debt originally his own, and that of a third person,

that distinction is now overruled: ib.; Hill v. Wade, Cro. J. 523. No demand of payment need be made on a note payable on demand, Chit. B. 361, 373, sed quære; and no request is necessary where the deft. is to perform the first act, Bristow v. Waddington, 2 N. R. 355, or where the party has, by his own act, rendered the performance of the contract by him impossible: as, where deft. was to deliver a certain quantity of hay to plt. on request, and it was stated and proved that deft. had otherwise disposed of it: Bowdell v. Parsons, 10 East, 359; Amory v. Brodrick, 5 B. & A. 716; 1 D. & R. 361, s. c. And, in the case of a lessor and lessee, where the rent was appointed to be paid at the lessor's house, it was held, no demand of rent was requisite: Rede v. Farr, 6 M. & S. 121; Sicklemore v. Thistleton, ib., 9. On an award merely awarding payment at a particular time and place, no demand is necessary: see 2 B. & B. 235. On the other hand, in an action for not marrying on request, plt. should aver a request, or some other allegation to dispense with it: Seymour v. Gartside, 2 D. & R. 55. In an action against an agent for not accounting, a request to account should be averred: Topham v. Braddick, 1 Taunt. 572. So, on a contract to deliver up a bond to be cancelled on request, 3 Bulst. 549; or on an award to perform an act on request, Birks v. Trippet, 1 Saund. 32; or, in debt, on a single bond for the payment of money on request, such request is necessary: Simpson v. Routh, 2 B. & C. 685; sed vide Capp v. Lancaster, Cro. El. 548, Thompson v. Butler, ib. 721. So, on an award to pay money on plt.'s executing a covenant of indemnity, a request to pay, and plt.'s readiness to execute the covenant, must be averred; for they are concurrent acts: Phillips v. Knightley, Fitzg. 53; Rowe v. Young, 2 B. & B. 234. So, in an action for not delivering goods sold by deft. to plt., or exchanged between them, or for not finding timber for repairs, &c., a special request to deliver the same must be alleged: Back v. Owen, 5 T. R. 409; Jones, 56. A request of payment should be made on sheriff previous to an action for not paying over the proceeds of an execution: Jefferies v. Sheppard, 3 B. & A. 696. Where a deft. by deed covenanted, at the request of plt., to avow, justify, and maintain, all actions brought by him, it was considered necessary to state such request of plt., in an action against deft. for not so maintaining, &c.: Amory v. Brodrick, 5 B. & A. 712; 1 D. & R. 361, S. C. But it was held that an averment that deft. had, by executing a release, disabled himself from maintaining an action, dispensed with the averment of request.

Form and Manner of stating Request.] When a special request is necessary, it must be stated with time and place, and by and to whom it was made: 3 Bulst. 298; Wallis v. Scott, 1 Str. 88; Com. D. Pleader, C. 69; Back v. Owen, 5 T. R. 409. The general averment, "although often requested," &c., will not be sufficient; and the request must be so set forth, that the court may judge whether it was sufficient according to the contract, Hardw. 38; Skin. 391. But is sufficient, after showing time and place, to allege that it was "then and there" made, Bokenham v. Thacker, 2 Vent. 74, 5, 1 Saund.