Jones v. Sommerville

By Mr. Justice Hitchcock : This is an action of covenant, brought by Alexander Sommer-ville against William S. Jones, in the Circuit Court of Frank454 lia county ; in which court, Sommcrville, at the August term, 1332, recovered judgment against Jones, for the smn of thirteen hundred and fifteen dollars sixty seven cents; and to reverse which judgment, the case has been brought, by writ of error, into this court. There were six pleas filed by the defendant below, to three of which issues were tendered by the jury; to the other three general demurrers were filed by the plaintiff below, which were sustained by the court, and which, among many others, are assigned for error in this court, and which bring before'it, the sufficiency of the declaration, and the construction oí the instrument sued on. This instrument as spread upon the record, is in the following words : “ Articles of agreement made and entered into this eighth January, one thousand eight hundred and twenty three, between Alexander Sommcrville of the one part, and William tí. Jones of the other part, both of the county of’Franklin, in the state of Alabama, witnesseth — that the said IVilliam S. agrees to ship his crop of cotton, by the said Alexander, to New Orleans, supposed to be one hundred and twenty bales, at the risk of the said William S. The said Alexander agrees and bincls himself to pay and discharge a judgment, obtained against the said William S. administrator of H. Cox, deceased, in favor of John Davis, for about two thousand dollars. Out of the proceeds of the said cotton, (he said Alexander is to retain tlio amount of the said judgment, with the further amount of eighteen per cent, on the said judgment, and the overplus of said sale, (if any should he) after deducting the freight, &c. to be paid by the said Alexander to the said William S. But should the cotton not sell for the before mentioned sum, then and in that case, the said Alexander agrees to wait with the said William S. for the deficit, until the money is collectedfrom the administrator of P. Cox, the claim being now in suit, in which case judgment will be obtained in favor of said William S. at next April term of the Circuit Court of this county. It is further understood, that said .¡Ucxaudcr is to wait for the amount of the said William S’s ac — 455 — count up to tbe first instant, until it shall be .ascertained what the cotton sells for, and should the sale be sufficient to discharge the before mentioned sums, and still be an overplus, the balance to be applied to the payment of William S’s account, under the same regulations as before stated, but should there not be a sufficient amount, then to be paid out of the before mentioned claim now in suit. In testimony, fee. Signed, ALEX. SOMMERVILLE, Seal. WM. S. JONES, Seal. Test, P. Martin.” The plaintiff below lias brought this action to recover the amount of the account referred to in the above recited instrument, which he alleges to have been fourteen hundred and fifty dollars, and he assigns as a breach on the part of die defendant, the non-payment of the said account, out of the judgment against P. Gox, which he avers to have amounted to twenty seven hundred and ninety'four dollars twelve and a half cents, and to have been collected by the defendant. He also avers that the defendant did not ship his whole crop of cotton to New-Orleaiis by the plaintiff, but only eighty’five bales, the nett proceeds of which lie avers to have been thirteen hundred and 'seventeen dollars thirty three cents, which he admits he has received. He docs not aver liow much more than the eighty five bales the defendant’s crop did amount to, and assign that failure as one of the breaches of the defendant’s covenant. He also avers that the defendant recovered a judgment against him, for a breach of his part of the covenant at the April term, 1825, of the Circuit Court of Franklin county for fifteen hundred dollars, but does not say in what that breach consisted ; lie docs not dver either a performance or readiness to perform, any one of the covenants on his part of the agreement. On the part of the plaintiff in error, it is contended that, the covenants in this instrument are dependent; that the want of an averment by the plaintiff below, of performance by him of his part of the agreements, is fatal to this action ; and that no action will lie on the covenant to recover the amount of the account, — 456 — the same never having attached, and not being merged in the covenant. -The plaintiff below and defendant here, insists that the covenants are mutual and independent, has treated them as such in his declaration, and that the amount of his account can properly be recovered in tins form of action. It is admitted that the question of the construction of the instru- , ment is fully presented by the state of the pleadings, for the consideration of the court. To draw the true line between dependent and independent covenants, has often been a subject ofmuchembarrassmcnthi coarts of justice, not so much, it is said, from any peculiar difficulty in the principle which is contained, which seems clear and indisputable, but in the application of the principle to the particular case. The principle as laid down in the elementary boohs, is» “ that when there are several covenants, promises, or agreements, which are independent of each other, one party may bring an action against the other for a breach of his covenants, without averring a performance of the covenants on liis, the plaintiff’s pari, and it is no excuse for the defendant to allege in his plea, a broach of the covenants on the part of the plaintiff. But when the covenants are dependent, it is necessary for the plaintiff to aver and prove a performance of the covenants on his pari, to entitle him to an action for the breach of the covenants on the part of the defendant.”a There are no precise technical words necessary to make a stipulation precedent or subsequent; neither does it depend on the circumstance, whether the claim is placed prior or posterior in the deed, so that it operates as a proviso or covenant, for the same words have been construed to operate as either one or the other, according to the nature of the transaction. The contradiction in the determinations has not arisen from a denial, but from a misapplication, of the principle, in the particu]al-instance.b’ The object which should actuate courts in the construction of this kind, as indeed, of all other kinds, of contracts, is to construe them according to the true intention and meaning of the parties at the time the contract is made. To discover that in457 iention, in relation to the construction, of covenants, certain rules have been collected j and which are laid down in 1 Chitty's Pleading, 313, taken principally from 1 Saund. 480. A brief abstract of these rules may not be out of place in this opinion; and, 1. Covenants are independent when a day is appointed for payment, by the defendant, of money, or for his doing any other act, and such day is to happen before the thing which is the consideration of the defendant’s contract, was to be performed, because it appears that the defendant relied upon his remedy, and did not intend to make the plaintiff’s performance a condition precedent. 2. But covenants are dependent, when the day appointed for the performance ofthe defendant’s contract, is. to happen after the time when the consideration of the defendant’s contract is to be performed; in such case the plaintiff must perform his act, before he can. sustain his action, and such performance must bo averred. 3. When the plaintiff’s covenant constitutes only a part of the consideration of the defendant’s contract, and the defendant has received a partial benefit, and the breach on the part of the defendant can be compensated in damages’, the covenants shall be held independent, and an action may lie to recover damages, without averring performance by the plaintiff.- The defendant having received a part of the consideration for his agreement, it would be unjust, that he should enjoy that part without paying for it, because he had not had the whole. In this case, however, the plaintiff must aver performance of at least a part of that which, he covenanted to do, or that the defendant has otherwise had a partial benefit. 4. But when mutual covenants constitute the whole consideration on both sides, they are mutual conditions, the one precedent to the other, and performance must be averred. 5. So when two acts are to be done at the same time, on a day named or generally, by the opposite parties, neither can — 458 — maintain an action without showing performance, or offer ict perform, or at least a readiness .to perform, thought it is not certain which of them was obliged to do the first act. And 6th. When there are mutual promises and agreements, yet if one thing be the consideration of the other, then the plaintiff’s performance must in general be averred. There are, howr ever, some cases, says Mr. Chitty, where it has been decided that when it appears that the defendant relied rather on the plaintiff’s agreement to perform his act, than his actual performance of it, it is not necessary to aver his performance. With a1 view then to construe this contract “ according to the meaning of the parties and the good sense of the case,” let us look into its object and terms. Jones, it appears, at the time.of this contract, was indebted in the sum of about two thousand dollars, as executor of one Cox, to one Davis, he was also indebted by account to Sommerville, to what amount does not appear by the instrument, these sums were due, and one of them in judgment, and he was in want of • money to pay them. He has cotton which must be sent to market, and he has a claim in suit against one P. Cox, upon which he expects to get judgment in about four months. In this situation, he applies to Sommerville to advance him the money to pay the judgment, and to give him time on the amount of his account ; and to secure him, and also to induce him to make the advance, he agrees to ship his cotton to New Orleans, which he supposes will amount to one hundred and twenty bales, through Sommerville, to pay him eighteen per-cent, on the amount of the advance to be made, and to give him a lien on the suit pending against P. Cox, in case the proceeds of the cotton shall prove insufficient to reimburse Sommerville in these three sums. Sommerville agrees to make the advance, to receive and ship the cotton* to delay the collection of the account, and to look to the cotton and the claim' against P. Cox, to reimburse himself, for the advance, the eighteen per cent, and the amount of the account ; these are all the stipulations on either side to be done or forborne ; no day is fixed for either party to perform his part of — 459 — the agreement, but each is to perform his act “ generally,” and it may be proper here to remark, that this court, at a former timé in a suit in favor of Jones vs. Sommerville, for a breach of his part of the covenant, in not paying the amount of the judgment against Jones in favor of Davis, held, that by the-terms of the contract, he was bound to pay-it “ in presentí.” The same terms being used in the covenant as to the delivery of the cotton by Jones, it must be subject to the same rule of decision, and there-' fore, he was bound to deliver the cotton “ in presentí.’’ By which I understand, that each act is to be done as soon as may be, to accomplish the object of the parties, and as the nature of .the case will admit. In the case of the money instanter, or when demanded, and in the case of the cotton, as soon as, by the cus., tom of the country, it should be ready for market; These two things' being then to be done “ in presentí” or “ generally,” and the residue of the stipulations on each side being necessarily contingent upon the performance of these two, it is proper to inquire under which one or more of the rules before adverted to, this contract properly falls, It will not, I apprehend, be contended that it comes under either the first or second rules, as in the first, the money to be paid, or the thing to be performed, is to be at a day, before the consideration of the other is to be performed,'and in the other, it is after the day : here they were both to be performed “ in pre-sentí,” at the same time. Does itfall under the third rule of construction ? Did the plaintiff’s covenant here constitute only a part of the consideration of the defendant’s contract ? Has lje received a practical benefit from its performance ? And can he be compensated in damages for the failure to perform the balance ? All these must be an_ swered in the affirmative, to bring the case within this rule.— What part of the contract then has the plaintiff performed ? It is not contended that he paid the judgment of Davis, or that he offered, and was prevented by Jones. Was this the moving consideration of the contract ? or was the delay in the payment of"' the account ? and is that delay, which is not alleged as part per-. — 460 — formance, a sufficient benefit to authorise the plaintiff to recover in ^is action, and drive the defendant round to his cross action to recover damages for the non-payment of the judgment to Davis. One would hardly'suppose that the new delay in the payment of an open account, which at most, could only save Jones the cost of a suit, would have induced him, when he had a judgment of two thousand dollars hanging over him, to place his cotton in Sommerville’s hands, and agree to pay eighteen per cent. on the amount of the judgment, then pay the judgment himself^" and expect to look to Sommerville for damages to remunerate himself. What rule of damages known to such contracts could compensate him ? Suppose his property had been sacrificed at the sheriffs’ sale, could the courts give him damages over and above the amount received^ by Sommerville from the sale of the cotton ? This would be the measure of his damages, because it would be the only rule applicable to the contract. He could not then be compensated in damages. The benefit then to be derived from the delay would not be sufficient, and the damages would be inadequate, neither being sufficient,, and both being requisite. It cannot, therefore, fall within the third rule. The illustration qf this rule, put in Saunders, is, that A, by deed, conveyed the equity of redemption of a plantation in the West Indies, with a'stock of negroes to B, in consideration of ¿£500, and an annuity of ¿£160 for life of A, and eovenant- " ed that he had a good title to the plantation, and was lawfully possessed of the negroes, and B covenanted that A, well and truly performing all and every thing therein contained,, he would pay the annuity. In an action for the annuity, the breach assigned was, that A was not lawfully possessed of the negroes, The plea was held ill, because by this defence, the want of title in any one negro would- bar the action, and it would be unreasonable to allow B to keep the plantation and stilhrefuse to pay for it, because he might not have a good title to every negro. For this he could he compensated in dam-,, ages. But suppose A had no title to the plantation, and to; tmiy a part of the negroes, would B have still been held to his. — 461 — covenants, though he had lost the benefit of his contract, for which he could not have been compensated in damages ? If Sommerville had paid the amount of the judgment, and had sued Jones for the non-delivery of the cotton, and Jones had pleaded that Sommerville had not waited for his account, there might be some analogy between such a case and the case of the plantation, as there the benefit, though not to the full extent of the covenants, would have been partial, and Jones could be compensated in damages for the breach in the event of delay, and Sommerville having, by the payment of the money, entitled himself to it, and to the eighteen per cent., could not be compensated, except by sustaining the contract. But to admit that though he had refused to make the advance, which was the principal and moving inducement of Jones to make the contract, yet in as much as he had delayed suing on his account, he should still be entitled to the benefit of the contract, would be violating the good sense of the case, be returning to the technical distinctions which have been repudiated in modern decisions, and be encouraging the making of covenants, for the express purpose of breaking them. Again, to entitle a party to recover under this rule, he must allege in his declaration that part of the consideration which he has performed. But Sommerville has not here alleged either payment of the money, an offer to pay, or forbearance of the collection of his account; but has contented himself with averring the non-payment of his account, out of the money collected of P. Cox, when the contingency upon which alone he was entitled to payment out of that fund, had never attached to the covenant, it having been defeated by his own non-performance of the very act, (to-wit, the payment of the judgment against Cox,) which alone gave him a right in the last resort, to look to that fund ; for it can hardly be contended that his ayerment that Jones had recovered a judgment for the proceeds of the cotton, is to be held as one-fif the benefits growing out of the contract. — 462 — The three remaining rules all embrace cases of dependent contracts, under which it is considered this contract propeiv ly comes, and that it refers itself directly tq the fifth rule. By this rule, when two acts arc to be performed on the same day or generally, and it is not certain which is to do the first, each is bound to perform his act before he, can recover for a breach of the other. In this contract, two acts are to be performed, one by each, and both in presentí,- and it is not certain, that is, it is not expressed in the contract, which is to do the first act, therefore neither can aver a breach on the part of the other, .without first averring performance of that which he was to do himself. Had Sommerville paid the judgment of Davis against Cox, he would on the failure of Jones to deliver the cotton, have entitled himself to the benefit of all the stipulations in his ow,n favor, and for this he had only to wait a reasonable time. But if the construction contended for-by the counsel for the defendant in error, he connect, if the parties here “ looked rather to the agreement than the performance of it,” then by waiting the same time, Sommerville could have recovered without paying a dollar, his commissions on the sate of the cotton, his eighteen pet cent, on the amount of the judgment, (unless indeed the statute of usury could be interposed,) and the amount of his account, and possibly his eighteen per cent, upon that, a proposition too mom strous to be entertained by a court sitting for the administrar tion of justice. That Sommerville contemplated this result when he entert ed into the contract, is hardly possible; that Jones did not, is morally certain ;■ that he delivered eighty five bales of cotton is admitted, and that Sommerville retained the proceeds until they were recovered at law, is not denied ; that he advanced any part, of the judgment of Darás against Cox, is not eon-tended, and that because he did not offset his account in the fiction of Jones for the recovery of the proceeds of the cotton, can have any hearing upon the construction which this court is to give of the contract, will not be contended. • — 463 — ■ When time is essential in the performance of a contract and the party has failed to perform, the opposite party may consider the contract as abandoned. Here. Sommervilie had failed to pay the money as he had stipulated to do, and Jones had a right to consider him as having abandoned the contract, and if so he had no right to an appropriation of the judgment against P; Cox, the non-payment of which to satisfy the account is assigned as the breach, and Jones having sued for the recovery of the proceeds of the cotton thereby acquired in that abandonment, and though Sommervilie af-terwards delayed suing for his account until after the judgment against P. Cox was realized, he connot be said to have done so under the covenant,, it was a voluntary delay which he was not bound to make,' for which he paid no consideration under the covenant, and from which he can derive no benefit at this time : so far from asserting any right under this alleged delay, it appears that he received the cotton, sold it, and appropriated the proceeds (and which in fact amounted to more than his' account) to his own use, or applied it to the satisfaction of the account, and it is only since he failed in that appropriation, by the success of Jones in the suit brought by him, has he thought of resorting to this covenant, and putting up the breaches assigned in this declaration. The case of Weaver’s adm'r vs. Childress, decided in this Court at the January term, 1831, has been cited by the counsel for the defendant in error, as sustaining their view of this case. In that case Childress made a covenant, in July, 1819, ' by which he sold a tract of land in Tennessee to the plaintiff’s intestate for eight hundred and fifty dollars, one half to be paid the first of Januarys 1820, and the balance a year thereafter, whonhe was to make a good title in fee simple ; and he covenanted to, put the plaintiff’s intestate into possession on or before January, 1820. In 1826 . suit was brought for the purchase money, and an averment was made that the defendant was put into possesssion of the premises according to the terms of the covenant, and he also averred — 464 — a readiness-to convey the lands according to the covenant, The dfifendant pleaded— 1. That the plaintiff below was not ready on the first of January, 1820, to make the conveyance; and 2. That on the day aforesaid, the plaintiff had not a gctod title to the lands in question; nor had he such right at the date of the corn tract or the commencement of the suit. On demurrer to these pleas, it was held by this court, that the contract came under the first and third rules of construction, laid down above. It is said by the court, “ that the terms of the covenant that the intestate should pay Childress one half of the purchase money twelve months before the title to the bond was to have been conveyed, and at the same time the former should receive possession of the land, is considered a full indication of the intention of the parties that their respective covenants should be mutual and independent, and that each relied on his legal remedy in case of failure. If they did not, why was the vendor to receive half the consideration money, long before the title was due ? Why was it agreed that the vendee should have possession before the title ? And why did he afccept it, and continue to retain it ? The presumption is, that the possession for several years was of considerable value, and that the vendee has had the benefit thereof. But if the vendor was entitled at any time to his action, for part of the purchase money, that circumstance would appear decisive of the principle that the covenants are independent.”— With that decision the court is still entirely satisfied, and they cannot perceive the analogy between it and the present case. It was suggested in argument by the counsel for the defendant in error, that in this and all the previous suits in law and chancery, which have grown out of this contract (and it seems to have been a fruitful source of litigation,) the judges, , counsel, and parties, had invariably regarded these covenants as independent. Whatever may have been the case in this respect heretofore, the point is now distinctly presented to — 465 — the court, and must receive its decision. The object of its creation is to adjudicate upon cases which have undergone previous investigation, and with a view to the correction of errors. , The court has, however, looked into the record,with a view to discover in what way this point may have been disposed of before. It does not appear what w;ere the views taken by the Judges who granted and dissolved the bill of Sommer - ville for an injunction against the judgment of Jones, no rea- - sons appear to have been given, and therefore, no inferences can be drawn ; neither does it appear upon what reasoning the bill of review was granted. The Judge, however, who gave the final decree in the bill of review, does express his opinion: we have, however, looked in vain for his reasoning onthatpoint rhesays, “Itis clear that equity had no jurisdiction of the case made out in the complainant’s bill. The covenants contained in the agreement between the parties were independent, and the complainant, for a breach of the covenants in his favor, had an adequate remedy at law.” Had the Judge expressed the views which brought him to that, conclusion, they would have received the respectful consideration of this court. In looking however, into the suit by Jones n.- Somtiierville, we find that the declaration, after setting out the contract expressly, avers that, in pursuance of said covenant, he had delivered his crop of cotton amounting to eighty seven bales, weighing twenty nine thousand nine hundred and ten pounds of cotton, charges the defendant with the breach in not paying the judgment in favor of Davis, and the measure of damages appears to have been the nett proceeds of the cotton.— This declaration is in strict accordance with those required in actions upon dependent covenants, and it is difficult to conceive how he could have sustained his action without those averments. Had it been otherwise, however, and were that case now before this court for argument and decision, with — 466 — out those averments, as this is, it would have presented the singular aspeet of two parties having gravely entered into co~ venants involving large amounts, requiring simultaneous and immediate performance on each part, each of whom had violated the covenants, each prosecuting the other for such violation, and in order that each should recover, it would be necessary .for both to admit, that it was neither intended or expected, that either would perform what he had voluntarily stipulated to do; in such cases there would be little left for the court to do but to say that both had abandoned the contract as soon as made, and that neither was entitled to any action against the other. In every aspect in which & majority of the court has been able to view this case, they have been led to the conclusion that the covenants are dependent; that for the want of the necessary avérments of performance by the plaintiff below, of any of his covenants, there is no legal cause of action set forth in the declaration, and therefore, that the judgment below must be reversed. As this view disposes of the whole case, the court has not investigated any of the other points made in argument. By Mr. Justice Thornton : It is my misfortune to have arrived at a different concia-' sion in this case, from that just announced, in the opinion delivered by a majority of the court. As a dissenting opinion does not contain the law of the country, , the Judge entertaining it, need not, except on his own account, be very solicitous as to whether it contain the law of the case or not. I am induced only by my deference to the acknowledged legal abilities of my brethren, to give a brief summary of my view Of the character of this covenant; and of the sufficiency of the declaration, which asserts a cause of action upon it. Som-mervilie, as I apprehend, was bound immediately ; or as this court expressed it, in the case of the present defendant in error, against the present plaintiff,a “ was bound to pay in — 467 — presentí,” by the terms of the covenant, the amount of the judgment in favor of Davis, against Jones as the administrator of Cox. This was, perhaps, the most urgent inducement to the contract between the parties; It admitted of no postponement ; in the nature of the thing no' delay was requisite, it being for the absolute payment of a sum of money, ascertained by the records of the country. The performance of this stipulation, I am satisfied was not to be delayed until tho shipment, or delivery for shipment, of Jones’ crop of cotton. Jones then, could have sued Sommerville for any unreasonable delay in making this payment, without averring as a condition precedent, the performance of anything on his part. But this is the acknowledged test of the character of the covenant, as to its being dependent or independent. And if Jones could sue Sommerville without making such averment, it would follow of course, that they were mutually independent, and that Sommerville could sue also for a breach on the part of Jones, without averring performance; for he is in truth, to be considered as having performed, according to the maxim, qui actionem, '¡label rem recaperanikim,, ipsum rem habere videtur. This view of the case can only be resisted, by maintaining, that from the terms of the covenant, Jones’ obligation to ship his cotton by Sommerville, was also an obligation to do so in presentí; and that a priority of performance in point of time, was not settled, as attaching to either party. But it seems to me clearly, that Jones’ stipulation in regard to the cotton, was of a future nature; and that he ought not to be compelled to aver either performance, or a readiness to perform, in an action against Sommerville, for failing to pay the judgment of Davis. So far from Jones being held by his covenant, to imm.diate performance, or readiness to perform at its date, the cotton was recognised possibly as not yet picked out; certainly as not yet in a condition to be shipped; as it was clearly not then baled; for the parties suppose that there will be one hundred and twenty bales, when afterwards only eighty constituted the crop. Jones — 468 — may have been delayed in getting ready to deliver' his crop °f cotton; and Sommerville may not have been ready to ship it, for some time to come : but surely the judgment in ,-the meantime, should have been paid off, I will suppose then, that by instant process, Jones had recovered the amount of this judgment from Sommerville, he having delayed to pay it until it was levied of Jones; and that this recovery was had before the shipment of the cotton, which might have been delayed by many circumstances. And suppose further, that Jones had, after all this done, upon demand by Sommerville for his eotton, failed and refused to deliver it up to him for shipment. Could not Sommerville, I ask, sue Jones under this supposed state of case, and recover the value of his crop of cotton, except its excess over and above, what he might then owe Sommerville on every ground of demand? This! presume, will be admitted on all hands. Now, I hold that there is no difference in principle, whether Sommerville had paid this judgment by suit, or voluntarily, or whether he had paid it at all, ov not, ¿s he was clearly liable to pay it; and this liability determines the nature of the covenant, not its discharge, in accordance with the maxim above quoted. In this supposed state of affairs, -if the cotton were enough in value to pay all Sommerville’s demands, there would be an. end of all actions on this covenant. It would be functus offi-cio. But if the cotton crop had appeared, from the testimony in the last supposed suit, to have been worth only a part of those demánds, then after those suits, which were only to effectuate, what without them, ought to have been done on both sides, the covenant would still be in force ; binding Som-merville to wait for the balance due him, and binding Jones to appropriate towards its extinguishment the proceeds of the judgment against Eldridge. If Sommerville attempted to sue for his account, or for any balance due him before the determination of the suit, and recovery against Eldridge, Jones could plead the subsisting covenant in bar, and defeat such-suit j thus reaping the full benefit of the stipulation foy — 469 — delay. Surely then, Sommerville, after the recovery from Eldridge, and the ascertainment of the fact, that there was a portion of that judgment properly applicable to the payment of his account, and which Jones refused so to apply, could sue him on the covenant for that specific breach, and recover the amount so applicable. This is my view of the rights of the respective parties ,to this covenant. . As to the particular action now brought upon it, whether the covenant be considered dependent or independent, I am unable to perceive any good objection against it, so far as the declaration alone is considered, however, the right of recovery mght be affected by facts disclosed in the subsequent pleadings. The averments in the declaration, are of the amount of the proceeds of the cotton crop of Jones ; the amount of the judgment of Davis, which Sommerville was to have satisfied ; the amount of money recovered by Jones in the suit against Eldridge, and the amount of the account due from Jones to Sommerville on the first ofi January, 1823. It also avers, though not at all material to the right of action, in my view of the covenant, that Jones had already sued him on the covenant, and recovered damages for his failure to satisfy the judgment of Davis. The breach alleged in the declaration, is the failure by Jones, to apply the proceeds of the money collected of Eldridge, to the satisfaction of his account, which is alleged to be still due and unpaid. By apt averments it is made to appear, that the excess of money recovered of Eldridge, over and above the discharge of the prior claims to which it was subjected by the covenant, is amply sufficient to have satisfied the account. The pleader very properly treated the covenant in this regard, as a collateral security for the account mentioned in it. It was in truth no more than a promise to apply to the discharge of ^ a separate and acknowledged debt, a certain contingent fund ; and the criterion of damages for the breach would be, whatever there was left of this fund, not greater than the account, after the satisfaction of the previous lien upon it. Ifc — 470 — Was no extinguishment of the account, or of the action upon it, although it superseded such action; for it might so happen, that no breach of the covenant might take place, and yet the acbount be not paid. But if there be no extinguishment of the account, still an action lies for damages on the covenant, \Vhich is in the nature of a collateral to it. There may be two suits, but only one satisfaction. Such a construction of this covenant as will maintain the action brought upon it by Sommerville, is necessary to afford all the benefits for which the parties stipulated. Upon any other construction, Som-merville by the first breach of his contract, in not paying Davis’s judgment, exonerated himself from all further obligation under the covenant: or else it must be maintained that Sommerville was still bound to wait for his account, though Jones was not bound to do what was the consideration of the delay; which would destroy all mutuality, and inflict a penalty upon Sommerville for his first breach; although he has answered for it, in damages already recovered. As to the supposed defect in the declaration, in not aver-ing that Sommerville had waited for his account, according to the covenant; if it were necessary to aver this, which I do not admit, it being a matter strictly for defence, yet I deem it as necessarily implied in the allegation, that the account is still due ; as livery of seizen is implied by the allegation of a feoffment. Footnotes [a] 1 Saun. 480 [b] 1 Chit. 312. [a] 1 Stew. 345.