North's Administrators v. Pepper

By the Court, Nelson, Ch.-J. In the first count there is no averment of a tender of the deed, or readiness to deliver it; but it is averred that before the first day of May, to" wit, on 6th January preceding, the defendant by writing gave notice-to the plaintiff that he had determined not to take his farpa, had abandoned ¡the agreement and refused to perform, &c. Upon well settled rules of pleading, this dispensed with an offer or readiness to perform on the -part of the plaintiff, as it showed; that’such step would have been but an idle ceremony. 1 Chitty, 318. Dougl. 684. 1 T. K 683. 5 Cowen, 506. Concedinglhat the defendant might recall this discharge of performance before the time for the execution of the deed, he must.set it up by. way of plea; or on a denial of the alleged rescindment, he might, I think,, give it in evidence at the trial, and thus disprove the discharge in legal effect. But unless he avails himself of the [639] locus peiiitentim in some' way, it is clear that proof of the averment in the declaration would dispense with performance on the part of the plaintiff. , The second count avers the execution of a deed agreeably to the terms of the covenant, ready to he delivered to the defendant at the stipulated time; also that notice was given to him, demand of the money and refusal. This is abundantly sufficient, as.it is substantially an averment of a tender, and refusal to perform. The better opinion seems to be, that it is enough to aver a readiness to perform, as under it an actual tender would be required in proof, if essential to maintain the action. Rawson v. Johnson, 1 East, 203. 2 Bos. & Pull. 448. 1 Saund. 320, (c). 2 id. 352, (z). 1 Chitty, 318. 5 Johns. R. 179. . It is said the plaintiff, in cases like this, should aver title in himself at the time of conveyance. This has been done here, if the covenant on the part of the intestate implies so much. Besides, the defendant may raise the question by putting in the proper plea. 17 Wendell, 376. It is further urged, that the readiness to deliver the deed by the plaintiffs, who are administrators, as set forth in the second count, shows no authority on their part to deliver it. This averment, as it respects the. plaintiffs, may be rejected as surplusage, as the count is complete without it; the testator having done every thing necessary to give the right of action. ‘ Judgment for plaintiff."