dant, yet he did not deliver the same; after verdict for the plaintiff, it was moved, in arrest of judgment, that the declaration was defective, because it only averred a readiness and willingness in the plaintiff to pay for the malt, and did not aver an actual tender of the price agreed upon; but the court over-ruled the objection, and held the averment sufficient. So where the declaration stated", that the plaintiff had bought of the defendant a quantity of oats at a certain price per quarter, which defendant had undertaken to deliver some time between Michaelmas and Lady-day; and although the defendant did, in part performance of his promise, deliver to the plaintiff a part of the oats, and although the time for the delivery of the residue was long since elapsed, and the plaintiff was during all that time, and still is, ready to receive the residue of the oats, and pay for the same, at the price agreed upon, yet the defendant had not delivered the same. After verdict for the plaintiff, an objec tion was made in arrest of judgment, because it was not averred in the declaration, that plaintiff had performed his part of the contract by tendering the price of the corn. But the objection was over-ruled by the court, and on the authority of the preceding case of Rawson v. Johnson, they held the averment sufficient. In an action for not delivering a quantity of oil, the declaration contained an averment, that the plaintiff was always ready and willing to accept it, and pay for the same on the terms agreed upon; yet the defendant would not deliver it, whereby, &c. The plaintiff proved the contract, and a demand, on his part, of the oil in question; but it was objected, on the part of the defendant, that the plaintiff should have proved that he was ready and willing to pay for the oil: Gibbs, C. J. was of opinion, and the court afterwards concurred with him, that the delivery of the oil and payment for it were to be concurrent acts; and that it was not necessary for the plaintiff to prove that he had offered the money to the defendant, till the defendant was ready to perform his part of the contract by delivering the oil. By the demand which he made on the defendant, he proved himself to be ready and willing to pay for the oil when delivered. Where it is agreed that some act shall be performed by each of two parties at the same time?, he who was ready and a Waterhouse v. Skinner, 2 Bos. & Pul. 447 o Wilks v. Atkinson, 1 Marsh, 412. p Jones v. Barkley, Doug. 654. offered to perform his part, but was discharged by the other, may maintain an action against the other for not performing his part of the agreement. Mutual Promises.-3rdly. Where there are mutual promises, and the mere promise, and not the performance thereof, is the consideration of the agreement (63), there an action may be maintained by either party, without averring performance of the agreement on his part: As where the declaration stated, that it was agreed that a race should be run between an horse of the plaintiff and one of J. S., and, in consideration that the plaintiff had agreed to deliver to the defendant a quantity of cloth, the defendant agreed to pay the plaintiff a sum of money in case J. S.'s horse should beat the plaintiff's horse, and then averred, that J. S.'s horse won the race. After verdict for the plaintiff, an exception was taken in arrest of judgment, because it was not averred in the declaration, that the cloth was delivered to the defendant; but the court over-ruled the exception, observing, that this was an action founded on mutual promises, and, therefore, it was not necessary for the plaintiff to make an averment of the delivery of the cloth; and Denison, J. took this distinction, "where a plaintiff' declares, that in consideration he would deliver to the defendant a piece of cloth, he, the defendant, should pay a sum of money for it, an averment of the delivery of the cloth is necessary; but if the plaintiff states an agreement, and then states that in consideration of such agreement, &c. in that case an averment is not necessary." Having thus illustrated the nature of conditions prece dent, concurrent acts, and mutual promises, it remains only to add, that there are not any technical words by which any of these considerations are constituted. The principal difficulty in the construction of agreements consists in discovering, whether the consideration be a condition precedent, a concurrent act, or a mutual promise. This, however, must be collected from the apparent intention of the parties to the agreement. The intention of the parties is, or is q Hob. 106. r Martindale v. Fisher, 1 Wils. ss. row, (63) "Whether one promise be the consideration of another, or whether the performance, and not the mere promise, be the consideration, must be gathered from, and depends entirely upon, the words and nature of the agreement." Per Lawrence, J. in Glazebrook v. Woodrow, 8 T. R. 373. assumed to be, the governing principle of all the late determinations. When the nature of the consideration is ascertained, the rules respecting the averments before laid down invariably hold. If the reader wishes to pursue this subject further, he will find the cases relating to it fully collected, and commented upon, in Mr. Serjeant Williams's edition of Saunders, vol. i. p. 320. n. 4. vol. ii. p. 352. n. 3. See also Mr. Durnford's note in Willes's Rep. p. 157. and post, tit. Covenant. IV. Of the Pleadings: 1. Of the General Issue, and what may be given in Evidence under it. 2. Accord and Satisfaction. I. Of the General Issue and what may be given in Evidence under it. 1. General Issue.-THE general issue in this action is non assumpsit. If by mistake not guilty be pleaded, instead of non assumpsit, such pica will be bad on demurrer', but aided after verdict". To a declaration in assumpsit consisting of several counts upon several promises, the defendant may plead non assumpsit generally. The general issue may be pleaded, if there has not been any contract between the parties, or if the real contract be t Marsham v. Gibbs, 2 Str. 1022. and Ca. Temp. Hard. 173. Adjudged on special demurrer. u Elrington v. Doshant, 1 Lev. 142. Corbyn v. Brown, Cro. Eliz. 470. x Taylor v. Willes, Cro. Car. 219. different from that on which the plaintiff has declared; e. g. if the contract was made with the plaintiff, and other persons not named in the action' (64); or if the contract was made with the plaintiff only, and the action is brought by the plaintiff and another". Under the general issue every thing may be given in evidence which disaffirms the contract; e. g. the coverture of the plaintiff (65) or defendant at the time of making the contract. In like manner the defendant may give in evidence, in order to avoid the contract, gaming, infancy, usury. If the contract be good in law, and not performed, the defendant may, under the general issue, in certain cases, give in evidence some legal excuse for the non-performance of it, as accord with satisfaction, a discharge before breach (66), foreign attachment, or a releases. y Per Raymond C. J. Leglise v. Champante, Str. 820. z Wilsford v. Wood, 1 Esp. N. P. C. 182. a Adm. in James v. Fowks, 12 Mod. 101. and daily practice at Nisi Prius. b Adm. by the Court in Hussey v. Jacob, Lord Raym. 89. c Darby v. Boucher, Salk. 279. Season v. Gilbert, 2 Lev. 144. d Bernard v. Sau), Str. 498. and Fort. 336. cited in Bull. N. P. 152. e Adm. per Holt, C. J. in Paramour v. Johnson, 12 Mod. 376. Ld. Raym. 566. S. C. f Welles v. Needham, Lord Raym. 180. Nathan v. Giles, 5 Taunt. 553. S. P. g Miller v. Aris, Middlesex Sittings after M. T. 41 G. 3. per Kenyon C. J. MSS. Hawley v. Peacock, 2 Camp. N. P. C. 558, S. P. (64) In an action on a tort, a different rule holds; for there, if one only of several persons, who ought to join, bring the action, the defendant can take advantage of it by plea in abatement only, although the defect appear on the face of the declaration, Addison v. Overend, 6 T. R. 766. 5 East's R. 407. except for the purpose of preventing the plaintiff from recovering any more than his share of the damages. Nelthorpe v. Dorrington, 2 Lev. 113. Indeed in assumpsit against one or more defendants, if any of the persons who ought to be joined are omitted, the defendant can only take advantage of it by a plea in abatement. Rice v. Shute, 5 Burr. 2611. Abbot v. Smith, 2 Bl. R. 947. Germain v. Frederick, B. R. T. 25 G. 3. 1 Saund. 291. c. Serjeant Williams's edit. Dixon v. Bowman, Mich. 1776, there cited. Evans v. Lewis, Exchequer, E. 1774. 1 Saund. 291. b. S. P. (65) But if the plaintiff take husband after the suing out of the writ, and before declaration, the defendant can take advantage of the coverture by plea in abatement only. Morgan v. Painter, E. 35 G. 3. B. R. 6 T. R. 265. (66) A promise, before it is broken, may be discharged by a pa Matter of law, which amounts to the general issue, may be pleaded or given in evidence1. Payment, before action brought, may be given in evidence, under the general issue. 2. Accord and Satisfaction. 2. Accord and Satisfaction.-Accord with satisfaction is a good plea in bar to this action, because damages only are recoverable; and accord with satisfaction to one defendant is a bar to all. This plea is frequently pleaded specially; but it may be given in evidence on the general issue1 (67). An accord to make a good plea must be perfect, complete, and executed"; for an accord executory is only substituting one cause of action for another, which might go on to any extent. Hence, a plea of accord to do several things", with an averment of performance of some only, and of an offer to perform the rest, is bad. So where to an assumpsit on a promissory note, the defendant pleaded an agreement between the defendant and plaintiff, with other creditors of the defendant, that they would accept a composition in satisfaction of their respective debts, to be paid in a reasonable time, and then averred a tender and refusal on the part of the plaintiff of the composition: on demurrer, the plea was holden bad. Acceptance of a security for a lesser sum cannot be pleaded in satisfaction of a similar security for a greater. To an action of indebitatus assumpsit for 157, the defen h James v. Fowks, 12 Mod. 101. i Dyer, 75 h. k 9 Rep. 79 b. 1 See ante, p. 115. m Peytoe's case, 9 Rep. 79 b. n Shephard v. Lewis, T. Jones, 6. o Heathcote v. Crookshanks, 2 T. R. 24. p Cumber v. Wane, Str. 426. rol agreement, but after it is broken it cannot be discharged without deed, by any new agreement, without satisfaction. Per Holt, C. J. 12 Mod. 538. S. P. adm. in Edwards v. Weeks, 1 Mod. 262. (67) "It is indulgence to give accord with satisfaction in evidence, upon non assumpsit, but it has crept in, and is now settled.” Per Holt, C. J. 12 Mod. 377. |