Byrne v. McNulty

The Opinion of the Court was delivered by Treat, J.* In March, 1841, John McNulty and Philip Byrne, being the proprietors of adjoining lots in the city of Galena, executed an agreement under seal, by which McNulty agreed to build a division wall between the lots,, of certain specified materials and dimensions, to be completed during that spring or the following summer; and Byrne, on his part, agreed to pay McNulty in March, 1843, one half of the expense of building the wall. In May, 1843; McNulty instituted an action of covenant against Byrne, on the aforementioned agreement, averring in his declaration, that he had well and truly performed the covenants on his part, and had built and -completed the wall according' to the directions of the agreement,, and assigning as a breach, the non-payment by Byrne of one half of the cost of erecting the wall. There was a demurrer to the declaration, which the Court overruled. A jury thereupon assessed the plaintiff’s damages at the sum of $307-93., and the Court rendered judgment on the assessment. Byrne prosecutes an appeal, and assigns for error, the decision of the Circuit Court overruling the demurrer .to the declaration. There can be no' doubt that the building of the wall was a condition precedent to the payment of the money, and that McNulty could not maintain an action on the covenant without showing the performance of the condition. .The question then arises, whether the general averment of performance is sufficient, or whether the mode and manner of the performance should be specifically alleged. The,general rule on the subject of averment by the plaintiff, in the action of covenant, may be briefly stated and illustrated. Where the covenant is definite in its terms, and the act to be done by the plaintiff is purely a matter of fact, it is not only sufficient, but the most proper, to aver performance in general terms, without alleging particularly how he has performed. Thus, if. the covenant be to pay money or deliver goods, an averment that the money has been paid, or that the goods have been delivered, or even in more general terms, that the plaintiff has kept and performed the covenants on his part, will be fully sufficient. The .performance is merely a question of fact, to be ascertained by the jury from the testimony. But where the act to be done necessarily involves a question of law, the general allegation will not suffice, but the quo modo must be pointed out and averred. As, if the covenant be to give an acquittance, or execute a conveyance, the acquittance or the deed must be set out and brought before the Court, so that its sufficiency and legal effect may be seen and determined. This becomes a question of law, and not of fact, to be decided by the Court, and not by the jury. So, where the covenant is indefinite, or in the alternative, the general averment is not sufficient, but the quo modo must be shown. These distinctions run through the books on pleading, and have been repeatedly recognized by the Courts. Com. Dig. “Pleader,” C. 60, 61; 1 Chitty’s Pl. 357; Thomas v. Van Ness, 4 Wend. 549; Glover v. Tuck, 24 do. 153. The decision in the case of Davis v. Wiley, 3 Scam. 234, does not conflict with the rule before laid down. In that case, the averment on the part of Wiley was not certain and explicit as to the manner and time of its performance. The time within which it was to be performed was subject to contingencies, provided for in the agreement. The plaintiff might have kept and performed his covenant up to the bringing of the suit, and still not be entitled to recover the price. It was proper, therefore, in that case, to require him to point out and specify the mode and extent of the performance. Testing this case by the rule before stated, there is no difficulty in correctly determining the question before us. The covenant on the part of McNulty was clear and definite. The act to be performed by. him was purely a matter of fact. Whether he had erected the wall according to the terms of the agreement, and within the time limited therein, were simple questions of fact to be determined by the jury from the testimony introduced on the trial by the parties. The declaration was sufficient, and the demurrer was properly overruled. The judgment of the Circuit Court is affirmed, with costs. Judgment affirmed. Footnotes [*] Wilson", C. J., did not sit in this case.