Dicker v Jackson
| Jurisdiction | England & Wales |
| Judgment Date | 12 May 1848 |
| Date | 12 May 1848 |
| Court | Court of Common Pleas |
English Reports Citation: 136 E.R. 1190
IN THE COURT OF COMMON PLEAS
S. C. 17 L. J. C. P. 234; 12 Jur. 541.
[103] dicker v. jackson. May 12, 1848. [S. C. 17 L. J. C. P. 234; 12 Jur, 541.] A declaration in assumpsit stated, that, on the 2nd of September, 1844, the plaintiff entered into certain articles of agreement with the defendant, for the sale of a piece of land, whereby the plaintiff agreed that he would, within one month from the date thereof, or from being required so to do, deliver to the defendant an abstract of his title to the said premises, and deduce a clear title thereto, and that the defendant did thereby agree that he would pay the purchase money as follows,-the sum of 5481. 18s. lOd. on the signing of the contract, and the residue or sum of 49401. 10s. on or before the 2nd day of September, 1848, together with interest, &c. The declaration,-after alleging that the plaintiff did, before the commencement of the suit, and within one month from being required so to do, deliver to the defendant such an abstract of his title to the said premises, and deduce such a clear title thereto, as in and by the said articles in that behalf specified and required,-alleged for breach, the non-payment by the defendant of the residue of the purchase-money.-Plea, that the plaintiff did not deliver to the defendant an abstract of title to the said premises, and deduce such a clear title thereto, as in and by the said agreement specified and required, modo et forma, &c.:-Held, bad, inasmuch as the performance by the plaintiff of the contract with respect to delivering an abstract, &c., was not a condition precedent to his right to maintain an action for the nonpayment of the purchase-money, and consequently, that the allegation in the declaration, of such performance, was immaterial, and not traversable. Assumpsit. The first count of the declaration stated, that, on the 2nd of September, 1844, in and by certain articles of agreement, dated, to wit, the day and year aforesaid, and then made and entered into by and between the plaintiff of the one part, and the defendant of the other part, the plaintiff agreed to sell, and the defendant agreed to purchase, for the sum of 54891. 8s. 10d., payable as thereinafter and hereinafter mentioned, a piece of land in the said articles described, together with the use and occupation, in common with others entitled thereto, of a certain back street in the (a) See Engstrom v. Brightman, ante, vol. ;v. p. 419. 6 C. B. 104. DICKER V. JACKSON 1191 said articles mentioned, and all rights, members, and appurtenances to the said piece of land belonging : and the plaintiff thereby agreed that he would, within one [104] month from the date thereof, or from being required so to do, at his own expense, deliver to the defendant an abstract of his title to the said premises, and deduce a clear title thereto; aind that the plaintiff would, upon payment of the purchase-money of the said premises, together with all interest which might accrue due thereon as thereinafter and hereinafter mentioned, execute a proper conveyance (to be prepared by and at the expense of the defendant), or of so much thereof as should not have been previously conveyed under the provisions thereinafter contained and hereinafter mentioned, unto the defendant, his heirs or assigns, or as he or they should^ direct or appoint, free from incumbrance (except as thereinafter and hereinafter mentioned), and subject to the several stipulations and conditions thereinafter and hereinafter mentioned : and the defendant did thereby agree that he, the defendant, his heirs, &c., would pay to the plaintiff the said purchase-money as follows, that is to say, the sum of. 5481. 18s. lOd. on the signing of the said contract, to wit, the said articles, and the residue or sum of 49401. 10s. on or before the 2nd of September, 1848, together with interest in the meantime on the said sum of 49401. 10s., at the rate of 51. per 1001. for one year, payable half-yearly, on the 2nd of March and the 2nd of September in each year; the first payment thereof to be made on the 2nd of March next after the making of the said contract: and the plaintiff did thereby agree, that, at any time before the said 2nd of September, 1848, he,:the plaintiff, his heirs or assigns, &c., would, on being thereunto required by the defendant, execute to him, or to any person he might appoint, a conveyance or conveyances of any portion of the said hereditaments, on payment to the plaintiff of the whole of the purchase-money which the defendant should have agreed to accept from the purchaser or purchasers thereof,-pro-[105]-vided that such purchase-money should not be at a less rate than 31. by the yard for land so...
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