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had performed the condition ; the court saying : «« If Marshall is to be allowed what he
paid [to Briscoe], before Craig can save himself from his covenant to purchase Briscoe's claim
and thereby demand the payment as upon a compliance with his covenant, yet it follows.that
Craig has sustained damages equal to the difference between what his own contract [with
Briscoe] might have been and that which he must allow Marshall. But how can a jury try
what might have been if a previous event had not happened? Craig contracted to have a
certain time for making an experiment of his own means of securing Briscoe's claim ; Mashall
has prevented this experiment, and would now refer it to the book of possibilities." And,
although upon an agreement to pay an attorney "a reasonable fee" for defending A upon


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a criminal charge, trial of which was prevented by A's avoidance of arrest, the attorney
can only recover nominal damages, and special damages resulting from attendance at court
to make defence, &c. {Wilson v. Barnes, 13 B. M, 330) ; yet, in an action on M's agree-
ment to pay B, an attorney, fifty pounds, provided that B should appear as counsel for M
in a certain criminal case, and that M should be finally acquitted ; averments that B did
appear, &c, and that M prevented a trial by forfeiting his recognizance, &c, were held to
entitle B to the fifty pounds [though he would be entitled to nothing if he advised M to
forfeit his recognizance]. Majors v. Hickman, 2 Bibb, 217. And in Mitchcrson v. Doa'er, 7
J.J. M., 53, a majority of the court held that rule applicable to a case in which the obligor
prevented a trial by committing suicide. And, in an action for a reward offered by the
defendant for the capture and comnction of persons who had been captured by the plaintiffs;
averment of the capture and that the defendant procured dismissions of the indictments
after the prisoners had confessed their guilt in open court, were held to entitle the plaintiffs
to the reward. (Z. <&* N. R. R. Co. v. Goodnight, <&V., 10 Bush, 552.) It is true that the
court did not, either in Marshall v. Craig, Majors v. Hickman, Mitcherson v. Dosier, or L
<&* N. R. R. Co. v. Goodnight, cVv., base its decision expressly on the ground that the
value of part-performance could not be fixed according to the contract; but it seems clear,
not only that those decisions support that doctrine, but that they can not now be supported
upon any other doctrine.

Formerly, those decisions might have been supported by decisions holding that, in any
case whatever, prevention of performance of a condition precedent by the obligor is
equivalent to performance, and entitles the obligee to recover as if he had performed the
condition. Even so late as the year 1809, the Court of Appeals cited, with approval, the
following passage from Powell on Contracts: «« Where a carpenter covenanted to build a
house for another on his land for ten pounds, and came prepared so to do, but was ordered
by him to desist, the carpenter, after such command to desist, might have maintained an
action for the ten pounds." (I Bibb, 390.) But, in Chamberlain v. McCallister, 6 Dana,
352, that doctrine was not only overruled but was stigmatized as a doctrine which, "if
recognized, would afford a new mode of making fortunes, without the expenditure of
either labor, time, or money ; and would legalize, in many cases, palpable and oppressive
injustice, and encourage artifice and studied evasions."

d. In Thompson v. Jackson, Oivsley cV Co., 14 B. M. t 1 14, it appeared that T agreed to
send to J, O &Co (who were pork-packers, on commission) 800 hogs "to slaughter at cus-
tomary rates ; " and that he failed to deliver the hogs ; and it was held that J, O & Co
were entitled to recover the net profits which they might have made if the hogs had been
delivered. And, so far as I know, the correctness of that decision has not been ques-

e. But, excepting such cases as those mentioned in the last three preceding notes {6, c,
and d), the question as to the criterion of recovery by an obligee who has been prevented
by the obligor from performing a condition precedent, can not, perhaps, be considered as
settled by (he Court of Appeals.

In Chamberlain v. McCallister, 6 Dana, 352, it was held that a mechanic who had
been employed to plaster a house at a certain price, and who was prevented by the
employer from doing the work, was entitled to recover [not the contract price, nor even
the profits which he might have made by doing the work, but only] such consequential
damages as he might have sustained «« in time, or preparation, or the loss of any other
job." And that decision was approved in Jeioell v. Blanford, 7 Dana, 472, and Ward v.
Morgan, 6 Bush, 507, and also in Haggin v. Price, 8 Dana, 48 ; in which it appeared that
Mrs. Price agreed to board Haggin one year for $500, and that he left her house, without
cause, after three months; and it was held that she was only entitled to recover the value
of the boarding for the three months, and any special damage she sustained by being dis-
appointed by Haggin's breach of the contract to board with her one year ; and also in

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Whitaker v. Sandifer, i Duv., 262, in which the plaintiff, who was to serve one year as
overseer of a farm, for a certain sum payable at the end of the year, was discharged at the
end of nine months; and it was held that the court below erred in instructing the jury that
the plaintiff was entitled to the full contract price for the whole year ; the Court of Ap-
peals saying : "In such a case, readiness to perform and prevention by the employer
are not equivalent to full performance ; but only entitle the employe to the actual damages
he sustained in his disappointment and loss of equally profitable employment. If . . .
his earnings in other employments equaled in value his salary for the three months of
non-service as appellant's overseer, he might be entitled to nothing for that time."

Those decisions, against allowing prospective profits, appear to be based, partly, on
the ground that the plaintiff might, by other employment, have made the profits, or some
of the profits, which would have resulted from performance ; and, partly, on the ground
that an offer or readiness to perform a condition which is to be performed by continuous
acts does not prove that the condition would have been performed if there had been no
prevention ; and, partly, on the ground that the obligor, having prevented performance,
would have no remedy against the obligee, although compelled to pay him the prospective

But in E. 6* P. R. P. Co. v. Pottinger & Bro., 10 Busk, 185, the court seems to have
held that a contractor for the building of bridges, culverts, &c, for a railroad company,
is, if prevented from doing the work, entitled, not only to losses sustained in preparation,
bnt to the profits which he might have made if not prevented. So far as the opinion in
that case relates to losses sustained in preparation, it accords with Cliamberlain v. McCal-
lister, Hoggin v. Price, and Whitaker v. Sandifer; but so far as it relates to prospective
profits, I suggest : I, that the court did not answer the reasonings on which the decisions
in the three last-named cases were founded ; 2, that, to the contrary, the court treated the
case of Chamberlain v. McCallister as having no bearing on the question of prospective
profits, for the alleged reason that McCallister " sought to recover the full contract-price
for work he had not been permitted to perform/' although the court held that McCallister,
notwithstanding his claim for the contract-price, was not even entitled to prospective
profits; and, 3, the court erred inciting Thompson v. Jackson, Owsley & Co., 14 B. M., 114,
as supporting the doctrine that a contractor for the building of a house is entitled to the
profits which he might have realized if not prevented from doing the work; for, in that
case, the court drew a distinction between a house-builder and a pork-packer, by saying
that the house-builder, " upon his disappointment might resort to other jobs in his line of
business, and might really sustain a very trifling loss in consequence of his disappointment.
. . . But, in the case under consideration, the slaughtering establishment had been
prepared or secured, and all things were in readiness, and the slaughterers could only operate
at their establishments 14 B. M., 1 17.

See, upon this subject, the anomalous case of Hill and Bergen v. Harris, 4 Bush, 450.

(3) Averments of partial performance when full performance was not prevented by the obligor.

Notwithstanding a possible dictum to the contrary in Escott & Son v. White, &c, 10
Bush, 169, it seems clear that, in such a case, if the obligee has rendered valuable services
to the obligor, he may recover the value thereof, not exceeding, however, the rate of com-
pensation fixed by the contract (Aforford v. Ambrose, 3 J. J. M., 688 ; Western v. Sharp, 14 B.
M., 177 ; Foster v. Watson, 16 Id., 377) ; nor can an action for such value be maintained until
the time for payment, according to the express contract, has elapsed (3 J. J. M., 692) ; and
it seems probable that if no rate of compensation can be fixed according to the express con-
tract, the covenantee can not recover anything. See Stahsberry v. Morgan, 6 Mon., 306;
Jewell v. Thompson, 2 Lilt., 52 ; Campbell v. Kincaid, 3 Mon., 68 ; and note (b) c, page 65.

(4) As to the mode of suing in cases of conditions precedent.

If the condition has been performed, or if the plaintiff has a sufficient excuse for non-
performance, he should sue on the express contract, whether written or verbal. Marshall

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v. Craig, I Bibb, 379; Majors v. Hickman, 2 Id., 217; 6 Dana, 356; 7 /&, 472; 8 /</.,4^J
II B, M., 30; 14 /<£, 178.

But, if performance be incomplete, and without an excuse for failing to make it com-
plete, the plaintiff can only recover (if at all) on an implied contract for the value of
services, &c, rendered. Morford v. Masiin, 6 A/on., 609; 3/. /. M., 688 ; 14 B. M,, 178-79.
But see Eseotl <5r* Son v. White, &c, 10 Bush, 169.

See further, as to conditions precedent, the next following note.

4. Concurrent considerations,

•• A concurrent consideration occurs in the case of mutual promises. . . . The
plaintiff's promise is executed, but the thing which he has engaged to perform is executory,
as in promises to marry, to submit to an award, &c. The promises of each party must in
general be concurrent or obligatory on both at the same time, to render the promise of
either binding, and must be so stated in pleading. And in these cases it is not always
necessary to aver performance of the thing stipulated to be done, the plaintiff's agreement
to perform being a sufficient consideration, unless the performance of one act be the con-
sideration of the performance of the other, in which case an averment of performance or
readiness to perform is in general necessary, even in cases of mutual promises, as upon
mutual promises to marry, and bargains to sell and accept goods." I Ch. PL, 296.

In EUiot v. Carneal, 2 Mar,, 309, the court said : " Covenants are classed in law, where
stipulations are to be performed on both sides, into dependent and independent, con-
ditional and unconditional. In the first class, the party in whose favor the condition is,
is not bound to act till the condition is performed by the other party : in addition to the
remedy which the law may give him for a breach, he has the additional security of with-
holding the consideration, and may also bring his action for the breach. In the second
class, the parties rely on the remedies afforded by law, and each may be liable, for a breach,
to an action."

A case of independent promises is where performance is to be made on different days.
Thus, if A and B agree to exchange horses, to be delivered thereafter — A to deliver in
September and B to deliver in December — either party may sue for damages for non-
delivery without averring that he had delivered or offered to deliver. See cases cited in 1
Ch, PL, 297, note n. And when A executed three notes to B, payable at different times
thereafter, and, in consideration thereof, B agreed to convey land to A " when the first
payment is made," it was held that these were independent agreements, and that B's
failure to convey did not constitute a defence to his action on the last note. Hutch-
ing* v. Moore, 4 Met,, no.

And A's note to B for the price of a clock, and B's covenant, in a separate writing,
warranting the clock to be a good time-piece, and covenanting that, if it did not prove
good, it should be made good, or replaced by a good one, '* before the money should be
paid," were held to be independent agreements. 4 Bibb, 493. But where A gave a note
to B for $300; and B, in a separate writing, covenanted that, unless he should deliver a
certain jackass to A within ten days, the note should "be given up;" it was held that
B's covenant was not an independent one, but was a defeasance, and that, having failed to
deliver the jack, he could not maintain an action on the note. 6y.y. M., 328.

Another illustration of the rules under consideration, is furnished by the case of
Elliot v. Carneal, above cited, in which it appeared that C agreed to deliver to E certain
property at a certain time and place ; and that E, in consideration of said agreement and
upon condition that it should be performed, agreed to assign a certain note to C ; and it was
held that E could maintain an action for damages against C for failing to deliver the
property, without averring an offer to assign the note, and although E may have placed it
out of his power to assign it. For other illustrations, see 4 Litt,, 253 ; \ J. J. M., 490;
2 Id,, 320; 16 B. M., 363; 17 Id., 678.

And, «• where a covenant goes only to part of the consideration on both sides, and a

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breach of such covenant may be paid for in damages, it is an independent covenant, and
an action may be maintained for a breach of the covenant, on the part of the defendant,
without averring [full] performance in the declaration. . . . And the reason is that,
where a person has received a part of the consideration for which he entered into the
agreement, it would be unjust that, because he has not had the whole, he should therefore
be permitted to enjoy that part without either paying or doing anything for it." 2 Lift.,
348; 2 Mar., 359, 429,

But, if the contract require concurrent acts ; or, as Chitty expresses it, "if one act be
the consideration of the other," neither party can maintain an action against the other
without an averment of performance on his part, or of his tender of performance at the
time and place fixed therefor by the parties or by the law (2 Bibb, 614; 1 Mar., 586; 3
Id., 25, 168; 3 Man., 11 ; 5 Dana, 138; 9 Id., 295-96) ; or the averment of an excuse for
failing to tender performance — such as the defendant's absence from the place for per-
formance at the time therefor, coupled with an averment of the plaintiff's readiness and
willingness to perform then and there; which is sufficient, if the plaintiff's performance
was to consist in delivering cumbrous property, such as corn or cattle, or any property not
portable on the person (9 Dana, 295-96; 10 Bush, 87, and cases cited) ; but if the property
or thing to be delivered by the plaintiff be portable on the person, such as money or a
promissory note or a deed of conveyance (i/.J. M., 203; 3 Id., 7; 2 Bibb, 247; 4 Dana,
587-88), the plaintiff must not only make the averments just suggested, but he must make
a tender of it in his petition and file it in court. 4 Dana, 587-88; 16 B. M., 337.

' Other excuses for the plaintiff's failure to tender performance are the facts that the
defendant never owned the property which he agreed to convey or deliver to the plaintiff
(4 Dana, 76) ; or had, before the day for performance, sold and delivered it to a third
person (1 Mar., 355-56; 7 B. M., 272); or had, before said day, announced to the
plaintiff his intention not to comply with the contract (4 Litt., 12, 16; Litt. S. C, 204);
and, in such cases, it is not neceesary for the plaintiff to aver his readiness to perform at
the time and place fixed for performance ; though, if the property or thing which the
plaintiff was to deliver be portable on the person, he must tender it in court in the man-
ner above suggested.

But the plaintiff's failure to tender performance is not excused by the fact that the
defendant, before the day for performance, agreed to sell the property to a third person
without delivering it (7 B. M., 272) ; nor by the fact that, on the day for performance,
the defendant refused or proved unable to comply with the contract. Hawley v. Mason,
9 Dana, 32.

If no time be agreed on for performance of concurrent acts, either party may require
performance at a reasonable and convenient time (3 Mar., 25 ; 2 Bibb, 341) ; and it is not
necessary for the plaintiff to aver that the thing might have been done by a given time (3
Bibb, 331) ; and averment of a demand for cattle on the day after the contract was made
was held sufficient to support a judgment by default. Trummel v. Roberts, I Bibb, 185.

If an indefinitely-fixed time—as between the first and last days of a month — be agreed
on for performance, and no intermediate day be designated by either party, the law makes
the last day the time for performance. 9 Dana, 291 ; 10 Bush, 87.

As a general rule, if no place be agreed on for performance of a contract which requires
one of the parties to deliver cumbrous property, the law makes his residence the place for
performance {Hardin, 85; 10 Bush, 87, and cases cited); and averment of a tender of
such property elsewhere, even at the residence of the other party, is unavailing {Litt. S.
C-t *33) I Dut » tf tne contract require each party to deliver property or a thing which he
can carry upon his person, the place for performance is any place within the State at
which the party seeking to enforce performance can find the other party. 2 Bibb, 247.

But there are several exceptions to those rules: thus, if there be no agreement as to
place, the law fixes the leased premises as the place for the payment of rents (4 Litt., 228);

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and the place of business of a corporation as the place for demanding money due by it
(3 B. M., 524; 4 Lilt., 226) ; and "when a contract is for such commodities as are by law
subject to inspection at a public warehouse, it may be implied that they are to be received
by the purchaser at some warehouse where he usually receives them ; or, where the con-
tract is for commodities to be consumed by the purchaser in a town, or to be exported
thence as merchandise, it may be implied that they are to be delivered there, if from the
general custom of the place it is to be expected." Chambers v. Winn, Hardin, 81.

As to an action for breach of a promise to marry, neither time nor place for performance
having been agreed on, see Martin v. Potion, 1 Litt., 233; Burks v. Shain, 2 Bibb, 341;
Fible v. Caplinger, 13 B. M., 464.

(5) As to continuing considerations.

" In the case of a continuing consideration, the declaration generally states that, in
consideration that the defendant had become and was tenant to the plaintiff of certain
lands, &c, he undertook, during the continuance of the tenancy, to use the premises in a
tenant-like manner, &c, and the declaration then avers the continuance of the tenancy
and the breach." I Ch. PL, 297.

II. Averments as to conditions subsequent, or, as they are frequently called, collateral con-


According to the common law, the obligee in a penal bond, conditioned to be void if
the obligor should perform an act, could maintain either an action of debt for the penalty
(Roberts v. Mariett, 2 Saunders, 183) ; or an action of coz'enant to recover damages for non-
performance of the act specified in the condition ; for, in legal contemplation, the condition
in such a bond constitutes a covenant on the part of the obligor to perform the act speci-
fied in the condition. Kennedy v. Kennedy, 2 Bibb, 464.

In the action of debt, the plaintiff sued for the penalty, without stating anything in the
declaration about the condition, and the onus was on the defendant to allege and prove
performance of the condition; and, if he failed to do so, judgment was given against
him for the penalty ( Roberts v. Mariett, above cited) ; and he was compelled to go into
equity to get relief against it. Holly v. Holly, Litt. S. C, 506. In the action of covenant,
however, it was necessary for the plaintiff, in his declaration, to show non-performance of
the condition, but not necessary to aver non-payment of the penalty. Beasley v. Gillespie,
4 Bibb, 314; Davis y. Nooks, 3 J.J. M., 496.

Under J 6 of an act of 1797 [M. <5r* B., 320) it was held that, even irt an action of debt,
it was necessary for the plaintiff to set forth, in substance, not only the bond, but the con-
ditions and to assign breaches thereof; and the damages were assessed by a jury ; and judg-
ment was rendered for the penalty and nominal damages, for which an execution was
issued, but with an indorsement that the damages assessed and costs only were to be levied.
Dorsey v. Biddle, 2 Bibb, 312; McGuire v. Trimble, 7 Mon., 120; Harrison v. Park, 1 J.
/. M., 170.

That statute was not re-enacted either by the General Statutes or the Code. But,
under the Code (§§17 and 113, sub. 2) the obligee in a penal bond is not entitled to a
judgment for the penalty in any case in which the obligor would have been entitled to
relief in equity under the old practice ; and in such cases, the obligee's proper remedy
seems to be what was formerly an action of covenant ; and he should set forth so much of
the bond and condition and make such averments as to show a breach of the condition
and a cause of action. Collins v. Blackburn, 14 B. M., 252. But he need not aver non-
payment of the penalty. 4 Bibb, 314; 3 J J. M., 496.

Concerning his right to recover more than the penalty, see Hughes v. Wickliffe and
Nourse, 11 B. M., 202.

III. Statement of contract.

In an action on an express contract it is necessary to state, in its words or according to
its legal effect, so much, and only so much of it, as shows that the plaintiff is entitled to

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the relief demanded. Lift. S. C, 151; 8 B. M., 378; 14 Id., 86; 16 Id., 361-62; 2
Met., 279, 3*2.

And failure to do so is not remedied by filing the contract with the petition, as is
required by \ 120 of the Code. 14 B. Af., 83, 252; 1 Met., 430; 2 Id., 88 ; 4 /</., 99; 1
Duv., 34; 6 #*M f 532; 12 Id., 287, 325, 577: contra, 1 £itr£, 9; and see 78 Ky., 66.

But a written contract or account on which an action is founded must be noticed by
the court for the purpose of ascertaining whether or not the statements of the petition are
true ; and the statements of the writing control if inconsistent with those of the petition
(14 B. Af., 213; 18 Id., 61; 1 Afet., 430; 3 Id., 95; 2 Duv., 161); unless the writing be
impeached by the petition. 14 B. Af., 213.

♦* Upon a written contract it is usual to follow the words of the contract where they
are concise and intelligible; and, if the legal effect be doubtful, this is the safer course;
the plaintiff, however, is not bound to set forth even the material parts in letters and words.
It will be sufficient to state the substance and legal effect, which is shorter and not liable
to misrecitals and literal mistakes ; and, as the courts discountenance any unnecessary
prolixity, in pleading, it is advisable to adopt the latter course when the recitals, &c,
may be long. Thus, in declaring in covenant on a lease, &c, it is in general advisable
not to set out the premises eo nomine, as in the lease, but to state that the plaintiff demised
to the defendant certain premises particularly mentioned and described in said indenture,"
&c. I Ch. PI., 302.

In Huffaker, 6V., v. National Bank, <5rV., 12 Bush, 287, it was held that an allegation
that the note sued on was executed by the defendant on May 2, 1874, " payable ninety
days after said date," was not equivalent to an allegation that the defendant promised to

Online Librarystatutes Kentucky. LawsCivil and Criminal codes of practice of Kentucky → online text (page 11 of 142)