of the wheat at seventy-five cents per bushel. Motion to set aside the verdict.

J. C. Spencer, for the defendants.

J. A. Spencer, for the plaintiff.

By Court, NELSON, J. The plaintiff must fail upon principles too well settled to require examination, and the omission to avail himself of those principles, when prosecuted by the present defendants on the contract relative to this same subjectmatter, has no doubt given rise to the present suit; for, had they been applied, he would have had no cause of complaint. If a greater amount in damages for a breach of his agreement has been recovered against him than the well-settled principles of law would warrant, it is his own fault, and can not be heard or admitted as a sufficient reason to indulge him in a cross suit to right himself. But before inquiring to see if, upon principles of law and justice, the whole subject of litigation arising upon this agreement could not have been properly adjusted in the former suit, I will examine this case for the present as if the former suit was out of the question, and which is perhaps placing it upon the ground upon which it ought to have been litigated. It would then stand thus: the plaintiff, after being called upon to carry into execution the agreement on his part, peremptorily refused; and while persisting in such refusal instituted a suit for damages, for the non-fulfillment of the agreement on the part of the defendants. There is certainly no principle upon which such an action can be sustained, nor have we been referred to any authority in support of it. It can not be that the plaintiff seeks to recover damages, in the strictest sense of that term, for the breach of the contract on the part of the defendants, for his own conduct is conclusive to show that he considers the fulfillment of it an injury to him, and has therefore preferred the hazard of responding in damages himself, rather than carry it into execution. Can he recover the whole consideration for the wheat? This would be unjust, for he has positively refused to deliver the wheat when demanded, unless, indeed, under the idea that they are independent agreements, the court is bound to afford to each party a specific performance or its equivalent in damages. Suppose the court should do so, how would the case then stand? The plaintiff would recover the consideration to be paid for the wheat, and the defendants the same sum for the non-delivery of it, besides . such damages as a jury would allow for the default in not de

livering it. It is obvious from this view, that confining the remedy for a violation of this contract to a suit for damages against the party violating it, the result is exactly the same to both parties as that to which we arrive after the above circuity of action, and I apprehend that such is the well-settled law of the case. It is true, where the covenants or agreements are mutual and independent, that is, mutual and distinct, one party may maintain an action against the other without averring or showing performance on his part, and the defendant in such case can not plead the non-performance by the plaintiff in bar of the action: Wheat. Selw. 383; 1 Saund. 320, n.

When this principle is rightly understood and applied, there can be no objection to it; and the sound reason given for it is, that the damages in each covenant or agreement may be very different, as where they are in the same instrument and the one not the consideration of the other, or where the covenants or agreements go only to part of the consideration on both sides, part having been executed, and the like cases; in all such the damages might be different, and a remedy must be sought in a suit by each party for a breach. So the terms of the instrument may be such that the covenants or agreements must necessarily be independent, without the existence of the reason above assigned; in such case, the court will carry into effect the agreement according to the intent of the parties; but whether the covenants or promises are independent or not, where the agreement is wholly executory, and the one covenant or promise or performance is the consideration for the covenant or promise or performance of the other, it may be stated with confidence that there is no principle or authority which will maintain a suit at law by a party who has positively refused to fulfill his part of the agreement against the other to recover damages for a breach of it. Though the consideration of the defendants' covenant or promise can not be said technically to have failed, the principle and reason of that rule have a strong application; but perhaps the best reason is, that this circuity of action, as I trust has already been shown, is wholly unnecessary, and therefore should not be sanctioned by the court. The case of Van Benthuysen v. Crapser, 8 Johns. 257, I consider as containing the principle I am here applying to this case. See, also, 13 Johns. 365 [Ketchum v. Evertson, 7 Am. Dec. 384]. Mr. Justice Marcy, in delivering the opinion of the court when this agreement was before under consideration, 3 Wend. 356, referred to Van Benthuysen v. Crapser, and distinguished it from that case; but the distinction taken confirms its application here.

It seems to be considered by the counsel for the plaintiff that if one of the promises in the agreement is independent, the other must be so also; and, as it has been decided by this court, 3 Wend. 356, that the plaintiff's promise to deliver the wheat was independent, therefore the defendant's promise to pay the money must be also independent. This is an entire mistake. In all cases (except concurrent promises, where the performance of both takes place at the same time) where the performance of one promise is a condition precedent, and must be performed or excused before the right of action exists for the breach of the other promise, the one is independent and the other dependent. The definition of a dependent covenant or promise shows this: If A. covenants to do or to abstain from doing a certain act, in consideration of the prior performance of some covenant on the part of B., A.'s covenant is termed a dependent covenant, because B.'s right of suing A. for a breach of this covenant depends upon the prior performance, or what is equivalent, of the covenant to be performed by B., which, from its nature, is termed a condition precedent. Now, it is obvious that the covenant of B. is independent, because it must be performed without reference to the covenant of A., and for a breach of it, A. may recover damages, without showing a performance himself. Where the promises are concurrent, there either party seeking to enforce the agreement against the other must aver and prove performance on his part, or what is in law equivalent, before his right of action commences. There can be no doubt that the promise of the plaintiff in this suit was independent, upon the reasons and authorities given by the court: 3 Wend. 356; but is not that of the defendant dependent? One of the rules of construction applicable to questions of this kind from the same high authority there referred to, is that "when a day is appointed for the payment of money, etc., and the day is to happen after the thing which is the consideration of the money, etc., is to be performed, no action can be maintained for the money, etc., before performance: 1 Saund. 320, b. In the case under consideration, by the terms of the agreement, the delivery of the wheat became due and demandable on the first day of April, and the consideration money therefor was not to be paid until the first of September thereafter

Applying the above rule, the delivery of the wheat is a condition precedent which must be performed, or that must be done which is equivalent in law, before this suit can be sustained for a breach of the agreement by the defendants. It

may be remarked that this rule, and the one upon which the case in 3 Wendell was decided, so far as the dependency or independency of the promises was concerned, are conclusive to show that one of the covenants or promises in an agreement may be dependent, and the other independent. If the money is to be paid on a day fixed before the act is to be done for which it is the consideration, the payment of the money does not depend upon the performance of the act-the promise is independent; but the performance of the act may depend upon the payment of the money-that promise may be dependent. If the money is made payable after the act is to be performed, the performance of the act does not depend upon the payment of the money, but according to the rule I have above referred to, the payment of the money depends upon the performance of the act; that is this case. The payment of the money was fixed at a day after the plaintiff was bound to deliver the wheat; by the terms of it, therefore, the defendants were not to trust to the credit or personal responsibility of the plaintiff, but had a right to have possession of the wheat before they parted with their money. This may be no great matter here, where all parties are responsible, but the rule is no less valuable, and must be universal in its application.

The rule to which I have before referred, and which ought to have been applied to the defense on the former suit by the then defendant, and would have adjusted all the rights of the parties without further litigation upon principles of law and justice, and which has been very fully considered by this court, will be found in the case of Clark v. Pinney, 7 Cow. 681. The principle of that case is, that where the vendor is in default for not delivering goods or chattels in pursuance of the contract of sale, and no money has been advanced by the vendee, the true measure of damages is the difference between the contract price and the value at the time the article should have been delivered; and the reason of the rule is conclusive, to wit, that such damages, added to the contract price which the vendee has not parted with, will enable him to buy the article in the market. It is obvious, if this rule had been applied, the plaintiff here would have had no cause of complaint, and his omission to apply it can not be remedied in this suit. This principle itself is sufficient to defeat this action without the interposition of any other, and settles, with the utmost exactness, all rights and remedies upon the agreement with the least possible litigation. The view I have thus taken of the case renders it unneces◄

sary to examine many of the questions raised; those which have been examined were raised upon the trial.

New trial granted, costs to abide the event.

DEPENDENT AND INDEPENDENT COVENANTS AND PROMISES.-See Cunningham v. Morrell, 6 Am. Dec. 332; Obermeyer v. Nichols, Id. 439; Bean v. Atwater, 10 Id. 91; Cassell v. Cooke, 11 Id. 610 and note; Roberts v. Beatty, 21 Id. 410, and Gould v. Banks, ante 90. In Grant v. Johnson, 5 Barb. 161, 163; S. C., 6 Id. 341, it is said that where a covenant goes only to part of the consideration on both sides, and a breach of it may be compensated in damages, it is independent, and on a breach of it the plaintiff may sue without averring performance, and that the rule of the principal case applies only where the act to be done and the payment therefor afterwards to be made, each forms the entire consideration for the other. In Evans v. Harris, 19 Barb. 422, the principal case is referred to as authority for the position that where goods are to be delivered before the day appointed for payment the delivery is a condition precedent.

MEASURE OF DAMAGES FOR NON-DELIVERY OF GOODS where the price has not been paid, is the difference between the contract price and the market value at the time when delivery should have been made; Caldwell v. Reed, 12 Am. Dec. 314. The rule of the principal case to the same effect is approved in Davis v. Shields, 24 Wend. 327; Masterton v. Mayor etc. of Brooklyn, 7 Hill, 74; Taylor v. Read, 4 Paige, 572; Dana v. Fiedler, 1 E. D. Smith, 475, 476; S. C., 12 N. Y. 48; Beals v. Terry, 2 Sandf. 129; Kent v. Hudson etc. R. R. Co., 22 Barb. 290; Currie v. White, 1 Sweeny, 206; Van Allen v. Illinois etc. R. R. Co., 7 Bos. 537; Schultz v. Bradley, 4 Daly, 39. Where the price has been paid, it is held in Pope v. Campbell, 3 Am. Dec. 722, that the measure of damages is the value at the time of delivery and interest.

MONEY IMPROPERLY RECOVERED IN PRIOR SUIT, NO ACTION FOR.-In Binck v. Wood, 43 Barb. 319, it was held, following the doctrine of the principal case, that where the maker of a note paid one hundred dollars thereon which was not credited, and the holder afterwards sued and recovered judgment therefor against the maker and surety, no defense being made, and the surety paid the judgment, and took an assignment from the maker of his claim therefor, he could not maintain an action against the holder to recover the amount.

SCHMIDT V. BLOOD.

[9 WENDELL, 268.]

WAREHOUSEMAN 18 LIABLE ONLY for ORDINARY CARE of goods intrusted to him.

WAREHOUSEMAN IS NOT LIABLE FOR GOODS STOLEN by his servant without negligence on his part.

ONUS OF SHOWING NEGLIGENCE is on the plaintiff in such a case, unless there is a total default in delivering or accounting for the goods. WAREHOUSEMAN HAS A LIEN UPON THE BALANCE LEFT in his hands of an entire lot of merchandise intrusted to him at the same time, after a deliv. ery of part, for the storage of the whole.

REPLEVIN for six and a half tons of hemp. At the trial at the