boat. A few months later defendant bought another boat which he ran in opposition to the Allen, thus reducing her profits. On May 31, 1888, defendant sold the Allen without plaintiff's consent, and before she had earned the net profits specified in the contract. Plaintiff claimed his services were worth $1000 a year, or $280 a year more than he had received. Defendant contended that plaintiff could not sue in quantum meruit, but must sue for breach of contract and recover as damages the value of one-fourth of the boat at such time as her net earnings should have amounted to $8000.

Per Curiam. 1. The defendant having put it beyond his power to perform the contract according to its terms, the plaintiff was entitled to recover the value of his services over and above the amount he had received under the contract.

2. The terms of the contract, as alleged in the complaint, required the defendant to devote his personal services to the business of the steamer Allen. As the bill of exceptions does not purport to set forth the substance of all the testimony, the verdict is conclusive that the contract was such as the plaintiff alleged. Evidence therefore was admissible which tended to show that the defendant's conduct in devoting his services to another steamer decreased the earnings of the Allen, and thereby prevented the plaintiff from earning the interest in the Allen called for by the contract.

No other questions are argued by counsel, and there being no error as to these, the judgment is affirmed.1

1 In Doolittle v. McCullough (12 Ohio St. 360) the plaintiff had been paid the full contract price for the portion performed, and it was held that he could not, after the defendant repudiated the contract, sue in quantum meruit to recover the value of his services, but must sue as for a breach of contract. The court says: " It is certain that where there has been a part performance, and that part paid for, under the contract, according to its terms, and the contract has then been terminated wrongfully by the party so having paid, it cannot be that the termination of the contract occasions damage or gives any right of action to the other party in regard to the part so performed and paid for under the contract. The damage in such a case, if any, arises from wrongfully precluding the other party from performing and receiving pay for that part of the contract unperformed on his part.' -p. 368.

See also Lynch v. Sellers, 41 La. An. 375; Marquis v. Lauretson, 76 Ia. 23.

(v.) Breach by failure of performance.

a. Absolute promises and concurrent conditions.

NORTHRUP v. NORTHRUP.

6 COWEN (N. Y.), 296.-1826.

Declaration on covenant. Demurrer to plea, and joinder. Defendant covenanted to pay certain rent due and in arrears on a certain farm, to one Tomlinson, and to pay all that should become due on March 25, 1825, the whole to be paid on that day. Plaintiff covenanted, that on defendant's so paying the rent, he, plaintiff, would give up and discharge a certain bond and mortgage. The action was for the non-payment of the rent.

Defendant pleaded that plaintiff did not, on March 25, give up and discharge the bond and mortgage, nor tender nor offer to do so, on that day, or before, or since.

SAVAGE, C. J. The plea is bad. The payment of the money to Tomlinson, on the day specified, is clearly a condition precedent. The performance by the plaintiff of his part of the agreement is not necessarily simultaneous; but was naturally to be subsequent. A general averment of his readiness to perform is all that can be necessary or proper. To aver a tender was certainly not necessary.

Lord Mansfield, in Jones v. Barkley (Doug. 690), makes three classes of covenants. 1. Such as are mutual and independent, where separate actions lie for breaches on either side. 2. Covenants which are conditions, and dependent on each other, in which the performance of one depends on the prior performance of the other. 3. Covenants which are mutual conditions to be performed at the same time, as to which the party who would maintain an action must, in general, offer or tender performance. I consider the plaintiff's covenant as clearly belonging to the second class. The defendant's covenant was absolute. The cases cited by the defendant's counsel relate to the third class. The plaintiff must have judgment, with leave to the defendant to amend on payment of costs. Judgment for the plaintiff.'

1 See Dodge v. McClintock, 47 N. H. 383; Clough v. Baker, 48 N. H. 254; Loud v. Pomona Land and Water Co., 153 U. S. 564; Gould v. Brown, 6 Ohio St. 538.

MCRAVEN v. CRISLER.

53 MISSISSIPPI, 542.-1876.

Action on a note for the purchase price of land. plea sustained.

Demurrer to

CHALMERS, J. The suit was upon a note for $3840 given by the appellant to the appellee's intestate for the purchase money of a tract of land. The note undertook to recite the land for the price of which it was executed, but the land was misdescribed. This being discovered by the payee some months after its execution, he took it to one Harris, who had acted as draughtsman for both parties in drawing it, and procured him to interline and alter it, so as properly to describe the land.

In suing upon the note, several counts were laid in the declaration: 1. Upon the note; 2. Upon a special contract to pay the sum agreed upon, and a delivery and retention of possession of the land thereunder; 3. The common counts for money paid out and expended, etc.

To the count upon the note there was a plea of non est factum under oath; and the view which we take of this count and the plea thereto renders an examination of the subsequent pleadings unnecessary, in so far as they relate to an ultimate right of recovery. We doubt whether the alteration in the description of the land was a material alteration of the note, and, if not, of course the latter was not affected by it. Bridges v. Winters, 42 Miss. 135.

But even if it be deemed a material alteration, we think it is equally clear that it did not vitiate the note. It was but the correction of a mistake so as to conform the note to the intention of both the parties to it, and it was made in such manner as clearly to negative any fraud upon the part of the payee, or any intention to obtain an advantage. That under these circumstances alterations in notes will not vitiate them, we think, is well settled. The only questions in such cases are, Does the alteration actually conform to the true intention of both parties to the instrument? and was it honestly made to correct the mistake, and with no intent of procuring an advantage? Where these questions are answered in the affirmative, the law will pre

PP

sume or dispense with the assent of the maker of the note to its alteration. 2 Parsons on Bills and Notes, 569, 570; Chitty on Bills and Notes, 184, 185; Bayley on Bills and Notes, 90; Kershaw v. Cox, 3 Esp. 246; Knill v. Williams, 10 East, 431; Brutt v. Picard, Ry. & Mood. 37; Clute v. Small, 17 Wend. 238; Hervey v. Harvey, 15 Me. 357; Bowers v. Jewell, 2 N. H. 543; Boyd v. Brotherson, 10 Wend. 93.

The point was ruled otherwise in Miller v. Gilleland (19 Penn. St. 119) by a divided court; but we think the dissenting opinion of Justices Lowrie and Woodward (to be found in 1 Am. Law Reg. 672) enunciates the sounder doctrine, both upon reason and authority.

The judgment in the case at bar is therefore maintainable upon the first count in the declaration.

A

By the defendant's sixth plea she averred "that the original note was given by her in consideration that the plaintiff would sell and convey to her by proper deed of conveyance the land," etc.; and that no deed had been tendered before suit brought. deed was filed with the declaration, which, by the judgment of the court, was ordered to remain on file, and be delivered on payment of the judgment. Was there any obligation to tender it before the institution of the suit? There was no written contract to convey the land, nor any proof of a parol promise to do So. The question must therefore be tested by the averments of the plea.

It will be observed that there is no allegation that the deed was to be made at or before the payment of the note, nor is any time specified when the execution of the deed was to take place. The note was payable one day after date. While it is true that the courts will hold the covenant to pay and the covenant to make title as dependent, unless a contrary intention clearly appears, it is no less true that the covenants must be regarded as independent, where the time of payment precedes the time fixed for delivering the deed, or where no time for making title is specified. Gibson v. Newman, 1 How. (Miss.) 341; Leftwich v. Coleman, 3 How. (Miss.) 167; Rector v. Price, 3 How. (Miss.) 321; Robinson v. Harbour, 42 Miss. 795.

The case of Gibson v. Newman, supra, was much like the one

at bar. In that case, as in this, there was no written obligation to convey, and the question was determined by the language of the plea. There, as here, the plea failed to aver any period when the deed was to be made; and upon this ground the covenants were held to be independent. That case is cited and approved in Robinson v. Harbour, ubi supra, the latest authoritative exposition of this court on the much-vexed question of dependent and independent covenants.

The demurrer to the plea in the case at bar was properly sustained.

Judgment affirmed.

TRACY v. ALBANY EXCHANGE CO.

7 NEW YORK, 472. — 1852.

Action for damages for breach of a covenant to renew a lease. Judgment for plaintiff. Defendant appeals.

JEWETT, J. . . . As to the objection made by the defendant that there was rent in arrears, and therefore the plaintiff was not entitled to a further lease, the covenant being independent, the liability of the defendant for the breach of the covenant in question remained. The payment of the rent was not a condition precedent to the right of the plaintiff to a renewal of the lease under the covenant, and he might bring his action for a breach of it, although he was guilty of a default in the payment of his rent or performance of his convenant. Dawson v. Dyer, 5 Barn. & Adol. 584.

Judgment affirmed.

HAMILTON v. HOME INS. CO.

137 UNITED STATES, 370.-1890.

[Quoted herein at p. 858 n.]