Goodwin v. Lynn

WASHINGTON, Circuit Justice (charging jury). The general rule is, that where the covenants in an agreement are dependent, or concurrent, the plaintiff must aver in his declaration, and prove on the trial, performance of, or an offer to perform, the covenants on his part. And in the construction of the instrument, for the purpose of understanding whether the covenants are dependent or not, the intention of the parties is to be discovered, rather from the order of time in which the acts are to be done, than from the structure of the instrument, or the arrangement of the covenants. Willis, 157; 7 Term R. 130; 8 Term R. 360; 5 Bos. & P. 233; 2 Johns. 145; 1 Satmd. 320, note 4; Doug. 690; 1 Saund. 320, note 4; 2 Doug. IOS, note 3; Id. 352, note 1. In this case, for example, the contract was to be completed on the 1st of April 1824, but previous to that, a certain quantity of the land was to be ploughed and sown by the plaintiff in wheat and rye; in which condition it was to be conveyed, and possession delivered to the defendants. Performance, by the plaintiff of this part of the covenant, and of that which bound the plaintiff to assign the lease, or an offer to do so, Is not alleged in the declarations; and if those acts have not been proved to your sat'isfaction, your verdict ought to be for the defendants. The burthen of proof is on the plaintiff. Verdict for defendant.