Jones and Another, Assignees of Gardiner, a Bankrupt, against Barkley
| Jurisdiction | England & Wales |
| Judgment Date | 19 June 1781 |
| Date | 19 June 1781 |
| Court | Court of the King's Bench |
English Reports Citation: 99 E.R. 434
IN THE COURT OF KING'S BENCH
Followed, Laird v. Pim, 1841, 7 M. & W. 484. Observations applied, Horsley v. Proce, 1883, 11 Q. B. D. 247. Referred to, Ellis v. Rogers, 1885, 29 Ch. D. 667; In re Bayley-Worthington and Cohen's Contract [1909], 1 Ch. 664.
la 32, 0--V- 434 JONES V. BABKLEY tl.,L -. Z tyj fa W OL. 885. jones and another, Assignees of Gardiner, a Bankrupt, against barkley. Tuesday, 19th June, 1781. Where something is covenanted or agreed to be performed by each of two parties at the same time, he who was ready and offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part. [Followed, Laird v. Pirn, 1841, 7 M. & W. 484. Observations applied, Horsley v. Price, 1883, 11 Q. B. D. 247. Referred to, Ellis v. Rogers, 1885, 29 Ch. D. 667 ; In re Bayley-Wwthingtvn, and Cohen's Contract [1909], 1 Ch. 664.] This was a special action on the case, for non-performance of an agreement. The first count of the declaration, - after reciting that the plaintiffs, as assignees of Gardiner, were entitled to the equity of redemption of £1490 Bank Stock, which was in mortgage to one Lane for securing a sum of money lent by him to the bankrupt, and that the defendant was desirous that this equity of redemption should be assigned to Lane by the plaintiffs, and that they should execute, to Lane, a general release of all claims and demands which they, as assignees, had upon him, - stated the agreement to have been, - "That, on Gardiner's having his certificate confirmed by the Lord Chancellor, and the plaintiff's assigning to Lane, or any person he should appoint, so far as in them lay, the equity of redemption of the said capital stock mortgaged to the said Lane, and also executing to him a general release of all claims, and demands, which they, as assignees, had on him, the defendant should pay, and promised to pay (four months after the certificate should be confirmed by the Chancellor, and on the plaintiffs assigning the equity of redemption, as aforesaid, of the said stock, to Lane, or any person he should appoint, and executing and delivering such general release,) the sum of £611, to the plaintiffs, for the benefit of the creditors of the bankrupt." - Then, after stating, that, in consideration of the promise and under-[685]-taking of the plaintiffs to perform all their part of the agreement, the defendant promised and undertook to fulfil all his part of it, the plaintiffs averred, "That, afterwards, viz. on the 19th of July, 1774, the bankrupt's certificate was allowed and confirmed by the Chancellor ; that the plaintiffs, at all times since the making of the agreement, had been ready and willing, and at the expiration of four months from the time of the certificate being confirmed by the Chancellor, viz. on the 20th of November, 1774, offered to the defendant, to assign, as far as in them lay, the said equity of redemption, &c. and to execute and deliver to the said Lane a general release, &c. and did, then and there, tender to the defendant, a draft of such assignment and release to the said Lane, for his the said defendant's approbation thereof, and did, then and there, offer to execute and deliver, and would, then and there, have executed and delivered, to the said defendant, such assignment and release, but that the said defendant, then and there, absolutely discharged the plaintiffs from executing the same, or any assignment or release whatsoever ; - yet the defendant not regarding, &c. did not, four months after the said certificate had been confirmed by the Chancellor, nor, at any time before, nor since, although often requested, pay the said sum of £611, or any part thereof, to the plaintiffs." - There was another count nearly to the same purpose. The defendant pleaded, 1. The general issue. 2. To the first count, "That the said plaintiffs did never execute an assignment of the said equity of redemption, to the said Lane, or any person he appointed, and a general release to the said Lane, of all claims and demands which they, as assignees, had on him, at the time of making the agreement, and deliver or tender such assignment and general release so executed, to the said Lane, or the said defendant." 3. A like plea to the second count. To these special pleas the plaintiffs demurred, and shewed for cause, in the demurrer to the plea to the first count, that the defendant had not, by his plea, traversed or denied, or attempted to put iu issue, any matter of fact alleged by the plaintiffs, but had introduced and attempted to put in issue matters of fact not alleged, nor necessary to be alleged, and that the plea was no answer to the said first count, but evasive and argumentative ; and the same to the plea to the second count. La Blanc, for the plaintiffs. - The averment of the plaintiffs, in the declaration, is equivalent to an averment of a [686] performance of their part of the agreement, and, 2DOUQL.M7. JONES V. BARKLEY 485 if it is, the plea is bad. 1. Wherever a man, by doing a previous act [f 1], would acquire a right to any debt or duty, by a tender to do the previous act, if the other party refuses to permit him to do it, he acquires the right as completely as if it had been actually done; and, if the tender is defective, owing to the conduct of the other party, such incomplete tender will be sufficient; because it is a general principle, that he who prevents a thing from being done, shall not avail himself of the non-performance, which he has occasioned. Thus, it is laid down by Lord Coke, "That, if a man make a feoffment in fee upon condition that the feoffee shall re-infeoff him before such a day, and, before the day, the feoffor disseise the feoffee, and hold him out by force until the day be past, the state of the feoffee is absolute, for the feoffor is the cause wherefore the condition cannot be performed, and, therefore, shall never take advantage for non-performance thereof " (c). In Lancashire v. Killingworth, which is reported by Lord Raymond (d), and in other books (e), the plaintiff declared on a covenant by the defendant's testator, that, upon two days notice to be given to the testator to accept £1000, Hudson's Bay Stock, at the Hudson's Bay House, in, &c. and upon the transfer thereof to him, he would pay the plaintiff £2000, and the plaintiff averred, that he gave notice, and was ready there, at the day, and offered to transfer the stock, but that the testator did not come to accept it: this was held ill upon demurrer, because the plaintiff did not aver a refusal by the other party, or that he staid till the last hour of the day, and the other did not come; but Lord Holt said, " That, though the money were payable upon the transfer, yet, if a legal tender had been made by the plaintiff, he would have been as well entitled to the money, as if he had made an actual transfer." So, in Blackwell v. Nash(f), which was debt for a penalty, the plaintiff declared, that he covenanted to transfer to the defendant, on or before the 21st of September, so much stock, and that the defendant, in consideratione pras-missorum, covenanted to accept and pay for it, and then averred, that he was at the books the 21st of September, & paratus fuit & obtulit to transfer to the defendant, who, then and there, refused to accept, or pay. On...
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