Page:The English Reports v1 1900.pdf/540

ready to transfer the said £200 South-Sea stock to the defendant, and offered so to do, and to permit him to receive all the dividends and advantages allowed by the company on account thereof, after the date of the said deed; but the defendant, or any on his behalf, was not there, in any part of that hour, to receive the transfer of the said £200 [216] stock. That the defendant at any time after making the said deed, or before the day of shutting the said books, or upon that day, did not tender or pay the said sum of £1360 to the plaintiff, or any part of it, although the plaintiff was ready all that time to transfer to him the said £200 stock. The plaintiff then averred, that on the said 23d of December 1720, after the shutting the said books, he sold the said £200 stock at the then current market price for £322 and no more, and received that sum towards satisfaction of the said £1360, and then requested the defendant to pay him £1038, to make up the deficiency of the said £1360, according to the intent of the said deed; but that the defendant had not paid the said £1038, whereby the plaintiff was intitled to recover the said penal sum of £2800.

To this declaration the defendant pleaded, that after the sale of the $200 stock, he enfeoffed the plaintiff of 100 acres of land in Myton, which he accepted in full satisfaction of the said sum of £1038 in the declaration mentioned.

The plaintiff demurred to this plea; and for special cause of demurrer shewed, inter alia, that the defendant had not made a full defence.

The defendant having joined in demurrer, the case was argued in the same term before the Court of Common Pleas; when the only question was upon the declaration, whether the plaintiff had intitled himself to the £1360? And that Court were of opinion, that he had not: for, as the money was to be paid for the stock, it was necessary for the plaintiff to shew that he had made a legal tender of the stock, before he could claim the money, which he had not done in this case; for he only said, that he was at the South-Sea office for an hour before the shutting of the books, and then and there offered to transfer the stock to the defendant; whereas, he ought to have set out the manner of transferring stock, and the time and place when and where it was usually transferred, which the Court could not take notice of judicially; and therefore, as it did not appear upon the record that the tender was a sufficient tender, judgment was given for the defendant.

Whereupon the plaintiff brought a writ of error in the Court of King's Bench; and upon arguing the case there, in Michaelmas term 1724, the Court were of opinion, that the covenants were mutual and independent; and though the tender was not well alledged, yet the plaintiff was entitled to the money, because he was not under a necessity of making a tender; and therefore reversed the judgment of the Court of Common Pleas, and gave judgment for the plaintiff.

The defendant therefore brought a writ of error in parliament, to reverse this latter judgment; and on his behalf it was argued (C. Wearg, J. Comyns), that he having agreed to pay the money for the stock, it ought to have been transferred, or at least tendered to him, before he was obliged to pay the money. That the plaintiff had not sufficiently alledged a tender of the stock to the defendant, for the Courts of law could take no notice of any fact but what was alledged upon the record; but the record did not alledge, either that the usual [217] place for transferring stock was the South-Sea House, or the usual time before the shutting of the books and consequently it did not appear to the Court, that a tender at that place and time was a good tender. That although it should be admitted, that where a contract or agreement is made, and one party undertakes generally to perform his part, and the other party in like manner to perform his, each party may have a remedy against the other, without any special averment that the plaintiff has done what was to be performed by him; yet, on the other hand, it must be admitted to be the known and settled resolution of law, that where one side undertakes to do a thing in consideration of, or upon the previous performance of what is to be done by the other, this is in the nature of a condition precedent; and be who is to do the previous act, cannot maintain an action against the other for his failure, without averring that he hath performed what ought to be previously performed by him. If therefore a proper and legal tender of the stock was necessary, in order to intitle the plaintiff to the money, if such tender could not otherwise judicially appear than by full and sufficient averment, and if the