Roysdon v. Sumner

Dickinson, Judge, delivered the opinion of the court: In declaring upon a covenant, it is not necessary to set out the exact words of the agreement, but only to state its legal effect according to its true meaning and intention. Whenever a covenant is in its terms defective, it ought to be set out according to its legal consequences. Grannis vs. Clark, 8 Cowen 35; Osborne vs. Lawrence, 9 Wend. 135; 1 Ch. Pl. 302-3; Lunt vs. Padelford, 10 Mass. Rep. 320; Gaster vs. Ashley, 1 Ark. 325. The principle is so well settled that it is unnecessary to say any thing further in defence of it. The breaches are properly assigned in the declaration, for they aver the only facts upon which the defendant’s liability accrued. The covenant contains two t conditions. The one was precedent upon the other. The plaintiff was employed as attorney to attend to a suit in which the defendant was interested, and he was to receive one hundred and fifty dollars provided the defendant succeeded in the action. The reception of his fee was made to depend upon a condition precedent, which was, that he would, with due care and diligence, attend to the suit as such attorney. This fact he has averred, and then adds, that he has gained the suit for the defendant. He had no interest in the suit, except the interest of his client as an attorney, and the allegation that he gained the suit for the defendant, is equivalent to averring that the defendant gained it. For this declaration shows that he gained it not for himself, but for the defendant; and therefore, the defendant’s liability to pay him one hundred and fifty dollars became fixed by the performance of this precedent condition. The judgment of the court below must therefore be reversed, with costs.