Rives v. Baptiste

G-OLDTH WAITE, J. — It is clear that in this case, unless the plaintiff has done every thing which devolved on him to do, in order to perfect the liability of the defendant on the bond sued on, no action can be maintained upon it. Now what are the conditions on which the defendant agreed to pay ? Magee was to make default; the plaintiff to be unable to collect the debt out of him by law ; and the property conveyed by the trust deed to prove insufficient, on an execution of the trust, to pay the debt. — Rives v. Toulmin, 19 Ala. 388. Magee has made default, and has been sued to insolvency ; but the trust has not been fully executed, as the replication shows that a portion only of the property embraced by the deed has been sold under it, and that the value of the property which was not thus sold was $1600. If this last condition was a precedent one, then the rule is well settled, that no action can be maintained, unless it has been performed.— Duke of St. Albans v. Shore, 1 H. Bla. 271; Smith v. Wilson, 8 East 347; Glazebrook v. Woodrow, 8 T. R. 366; Kingston v. Preston, 2 Doug. 688; Bailey v. White, 3 Ala. 320; Jones v. Somerville, 1 Porter 437. We do not understand this rule to be denied ; but it is insisted for the appellant, that this condition is divisible, and may be performed in part, — that the part unperformed is capable of complete com 391 pensation, and that the defendant, having received the consideration of the bond, which was the payment of the common debt by the plaintiff, shall be held upon the bond, at least to the extent of the part performed. We concede that, where covenants are mutual, and go to a part only of the consideration on both sides, and ji partial performance is not inconsistent with the terms of the contract, and the part unperformed can be compensated, either by way of recoupment or damages, it cannot be insisted on as a condition precedent. The case establishing this doctrine is Boone v. Eyre, 1 H. Bla. 213, n. a, where the plaintiff conveyed to the defendant a plantation in the West Indies, in consideration of a sum certain, and an annuity for life of £160 per annum, and covenanted that he had a good title to the plantation, and was lawfully possessed of the negroes ; and the defendant covenanted, that, the plaintiff well and truly performing all and every thing on his part to be performed, he, the defendant, would pay the annuity. In an action for the non-payment of the annuity, it was held no defence, that the plaintiff was not lawfully possessed of the negroes: and Lord Mansfield said : “ The distinction is very clear : where mutual covenants go to the whole consideration on both sides, there they are mutual conditions, the one precedent to the other ; but wheró they go only to a part, where a breach may be paid for in damages, there the defendant has a remedy on the covenant, and shall not plead it as a condition precedent.”' This doc-tine has since been repeatedly recognized in the courts of Westminster (Duke of St. Albans v. Shore, supra; Campbell v. Jones, 6 T. R. 573; Havelock v. Geddes, 10 East 556); but we have found no case in which it has been applied, where the covenant clearly extends to the liability ; and in the case cited as establishing the doctrine, had the covenant contained a provision that the defendant should not be required to pay the annuity unless the plaintiff was lawfully possessed of all the slaves, there could, we apprehend, be but little question that the covenant would have been held to be a precedent one, for it would then have gone to the liability, or, in the language of Bosanquet, J., in Lucas v. Godwin, 3 Bing. N. C., “have been of the essence of the contract.” See, also, Addison on Con., 187,188. Here the stipulation of the 392 defendant is, in effect, that he is only to pay on sale of the property under the deed of trust; and the parties evidently intended this should be done, as the amount he is to pay is to be ascertained by a reference to the sale so made. By the express agreement of the parties, therefore, this condition must be regarded as one on which the liability of the defendant depends, and must be held as a condition precedent, the performance of which must be shown, to entitle the plaintiff, in a suit upon the bond, to recover anything. But it is said, that if the execution of the trust was a condition precedent, the replication shows that it has been substantially performed. We cannot so consider it. Courts will not, it is true, require the performance of every minute particular of a condition, unless the full and exact performance is part of the essence of the contract; or, in other words, unless, upon a fair construction of the covenant, such appears to have been the clear intention of the parties. — Addison upon Con., 188. But here, it is evident, the parties contemplated a sale of all the property under the deed : that is their contract. They have made the liability of the defendant to depend upon it; and having done so, we cannot change it: our duty is limited to construing contracts, but we are not at liberty to make them; and when the plaintiff has agreed that the defendant should only be held liable upon a sale of all the property, it would be establishing a most unsafe and dangerous precedent, to say that he should be permitted to pay the value of a substantial portion of it, instead of doing that which he agreed to do, in order to make the defendant liable. The judgment must be affirmed-