Sorell v. Sorell

CLAY, J. Two grounds are mainly relied on by the counsel for the defendant in error, in support of the judgment of the court below. 1. That the averment of the performance of covenants, on the part of the plaintiffs, is general, when it should have been special. 2. That the breach is erroneously assigned, so far as it alleges the non-performance of the defendant, in not delivering seventy-five head of cattle, when the covenant, as averred, was for the delivery of twenty-five head of cattle. In regard to the first objection, it is clearly untenable. It is laid down in Chitty’s Pleadings, 118,117, that if the plaintiff shew a certain and exact performance; it is frequently sufficient to state it in general terms, without averring particularly hoyv he performed, as on a promise to pay so much, as the plaintiff should expend for the officers of the army in such a suit — an averment that he spent so much is sufficient, without shewing for what officers in particular. So a substantial performance, in some instances, is held sufficient, as when the condition was to enfeoff, a conveyance by lease and release, was held sufficient; and a condition to deliver a will, was considered performed by delivering letters testamentary. In the case of Wright v. Tuttle, [4 Day, 313,] the plaintiff averred, generally, that he had kept and performed all the covenants in the indenture, on his part to be performed, it was held, not only sufficient, but the most proper form; and that the distinction was, that when the act involved in it a question of law, [578] viz: whether it was done as the law directed, the quo modo must be pointed out; but when it is a mere matter of fact, a general averment of performance is most proper. In the case at bar, the delivery of the property, to the defendant, was a mere matter of fact, and consequently, the general averment was sufficient. It is true, as maintained by the counsel for the defendant in error, that the breach must agree with the thing to be done, or performed; and that when a plaintiff clearly assigns the breach of a covenant, which he has not set out, it would be bad. But, in the present case, the number of cattle delivered, and the number to be delivered, by the defendant, at the expiration of his term, is averred, in both instances to be twenty-five head — and the breach following immediately after the last averment, is for the non-delivery of the said seventy-five head of cattle. The said seventy-five head evidently refers to the preceding averment; and, instead of being the fault of the pleader, is doubtless a merely clerical misprision, which we do not think should be regarded as a material error. Let the judgment be reversed, and the cause remanded.