#### *Bailey v. Clay, &c.

June, 1826.

Pleading and Practice — Declaration—Precedent Condition. — The failure to allege the performance of a precedent condition, in a declaration, will be cured by a verdict.

Same — Allegata et Probata. — The general rule is, that no party can be required to prove, upon the trial, any matter not alleged by him in his pleadings, unless the fact not alleged is necessarily implied from the facts stated in the pleadings. In cases coming within the general rule, all matters necessarily implied from what is alleged, are presumed to have been proved on the trial, after verdict.

Same — Omission of Necessary Hatter in Pleading— ESfect of Verdict.† — But matters collateral to the fact in issue, and necessary to the right of the party, if they are omitted in the pleadings, cannot be presumed to have been proved, and therefore their omission could not be cured by the verdict. at common law.

Contract for Sale of Land — Condition Precedent.‡ — In a contract for the purchase of land, where no time is limited for the conveyance of the property, and a time is limited for the payment oí the pur*140chase money, the conveyance is not a condition precedent to the right to demand the money.

Undertaking to Pay Money — When to Be Performed.— A general undertaking to pay money, without appointing a day of payment, obliges the party to pay immediately; but an undertaking to do a collateral act, as to convey lands, entitles the party to perform it at any time during his life, unless hastened by the request of the other party.

Contract — Non-Performance—fleasure of Damages.— The stipulated price of property sold, is the proper measure of damages, for the non-performance of the contract, if no evidence is offered to shew that some other standard is more proper.

This was an appeal from the Superior Court of Law for Halifax county, where Romulus M. Saunders and Henry M. Clay brought an action on the case, against William Bailey. The action was founded on an agreement, by which the said Saunders and Clay should sell and convey to the said Bailey, forty-five feet of a lot in the town of North Milton, at the rate of forty dollars for each front foot; one half at the following Christmas, and the other half twelve months thereafter, and that the said property w.as to be improved by the said Bailey in some convenient time. The plaintiffs, in their first declaration, say, that they always have been, and still are, ready and willing to execute a good and sufficient conveyance of the said lot, &c. Yet, the said Bailey did not, and would not, pay the said sum of money, or any part thereon, nor did improve the said lot, but hath hitherto neglected and refused to do “'the same, to the damage of the plaintiffs $5000, &c. But this count does not allege any assumpsit by the defendant. There are also two general counts.

The defendant pleaded non-assumpsit.

Afterwards, the plaintiff obtained leave to amend their declaration, and filed a new one setting forth the agreement, laying an assumpsit, and alleging a breach. To this declaration, the defendant likewise pleaded non-assumpsit. Issue was joined; and at the trial, the defendant demurred to the plaintiff’s evidence; in which the plaintiff joined.

The defendant excepted to the opinion of the Court, who had instructed the jury that the price agreed on by the parties, must be the measure of the said damages.

The jury gave damages for the breach of contract, taking the price fixed by the agreement as their guide, and dependent on the judgment of the Court on the demurrer to evidence. This verdict was set aside by consent, and upon a new trial, the defendant filed four bills of exceptions, one of which was like that above mentioned. The other three are not important, as they are not noticed by this Court. The jury found a verdict for the. plaintiffs, and assessed their damages to eighteen hundred dollars, with interest, &c. that sum being founded on the agreement.

The Court gave judgment for the plaintiffs, and the defendant appealed.

Leigh, for the appellant.

Stanard, for the apoellee.

†

Pieading and Practice — Omission of Necessary Matter in Pleading — Effect.—Bee principal case cited in Morse v. Rector, 44 W. Va. 207, 28 S. E. Rep. 765.

‡

Contract for Sale of Land — Condition Precedent, — In a contract for the sale of land, where there is a definite time appointed for the payment of the purchasemoney, and no fixed time for making the deed, the making oi the deed is not a precedent condition to the right to demand the money, Clark v. Curtis, 11 Leigh 578, citing principal case as authority. The principal case was distinguished in Roach v. Dickinsons, 9 Cratt. 154.

June 8.

JUDGE GREEN.

The plaintiffs in the Court below, originally filed two several declarations, with distinct conclusions, ‘‘to their damage of $5000, and therefore, they bring suit, &c.” The first of these declarations, set out the written contract between the parties, and alleged that they had always been “ready, and were still ready, to perform the contract on their part; but, that the defendant had failed and refused to pay the purchase money of the lot; but alleged no promise or assumpsit by the defendant. The second declaration follows the first, and is connected by these words; “and afterwards, to wit,” &c. and alleges an assumpsit by the defendant, in consideration of a lot sold to him by the plaintiffs ; and then follows a count upon a general indebitatus assumpsit, for money had and received. Then follows the assignment of breaches • upon the two last counts, and the conclusion “to their damage,” &c. To this declaration, or these declarations, the defendant pleaded non assumpsit, and issue was joined. Ata subsequent Term, the plaintiffs had leave to amend their declaration, and the record proceeds, ‘‘which was accordingly awarded, and which declaration so amended, is in these words and figures, following, to wit.’” This declaration is perfect in all its parts, having the regular commencement, statement of the cause of action, and conclusion. It contains a single count upon an assumpsit, in consideration of the agreement set out in the declaration.' The defendant had liberty to plead de novo, and pleaded non assumpsit, upon which, issue was joined.

If it were material to the decision of this cause, I should think, that the amended declaration, plea, and issue thereupon, were substitutes for the former pleadings, which were no longer a part of the record, although one of the exceptions speaks of the first count of the declaration, as one that was in issue before the jury. It is, however, unnecessary to decide this question; since, if the first set of pleadings are considered as a part of the record, any errors in them, which might have been fatal upon demurrer, are cured by the Statute of Jeofails.

The great objection insisted on by the appellant, is, that upon the true construction of the contract, a conveyance of a good title to the lot sold by the appellees to him, was a condition precedent to their right, to demand the purchase “money; and, that such a conveyance, or offer to convey, was neither alleged in the pleadings, nor proved upon the trial. If such were the true construction of the contract, the failure to allege a conveyance, or a tender o^ a conveyance, in the declaration, would, after verdict, have been cured by the Statute of Jeofails. Yet the plaintiff would have been bound to-prove such conveyance or tender upon the trial. It is a general rule, that no party can be called upon to prove, upon the trial, any matter not alleged by him in his pleadings; unless the fact not alleged, is necessarily implied from the facts stated in the declaration or other pleading. As, if a feoffment is pleaded without alleging livery, livery must be proved ; because there can be no feoffment without livery. Spieres v. Parker, 1 Term Rep. 145. 1 Saund. 228, note 1. In such cases, after verdict, evert at the common law, all matters so necessarily implied from what was alleged. *141were presumed to have been proved on the trial, since the party might be called on to prove them; and the omission to aver such matters in the pleadings, was cured by the verdict. But, if some matter collateral to the fact in issue, and necessary to the right of the party, was omitted in the pleadings, the party could not be called upon to prove such collateral fact, upon the trial; and therefore, it was not after verdict presumed to have been proved, and consequently, such omission was not cured by verdict at the common law. Of this, several examples are cited in the note to Saunders, before referred to. In Collins v. Gibbs, 2 Burr. 899, it was held, that when a promise depends upon the performance of something to be first done, by him to whom the promise is made, and in an action upon such promise, the declaration does not aver performance by the plaintiff, after verdict for the plaintiff, the omission is cured by the common law; because the plaintiff might be called upon to prove his performance at the trial, and from the finding of the jury, it is presumed, that he did prove his performance. This is the explanation given by the note in Saunders, of that case.

*The question is, whether the conveyance of a good title, or tender of such conveyance, was a condition precedent in this case, to the demand of the purchase money. If it was not, then there was no necessity to allege in the pleadings, or prove at the trial, any such conveyance of tender. If it was, then, although after verdict, the omission to make such an allegation in the pleadings, is cured by the Statute of Jeofails, and indeed would have been cured at the common law. The plaintiffs were bound to prove such conveyance or tender upon the trial: They failed to do so; for the tender, such as it was, was made long after the time appointed for the payment of the purchase money.

The case of Pordage v. Cole, 1 Saund. 319, appears to be a case in point. There the contract was, that the defendant should give the plaintiff 7751. for all his lands, the money to be paid at mid-summer 1668; and the Court held, that the conveyance of the land was not a condition precedent to the demand for the money. In the case at bar, the contract is, that the plaintiffs agree to sell and convey to the defendant, a lot at the rate of $40, for each front foot, one half at next Christmas, and the other half in twelve months thereafter. In both these cases, no time is limited for the conveyance of the property, and a time is limited for the payment of the purchase money; and according to the rule laid down, in Thorp v. Thorp, 1 Salk. 171, when the money is to be paid at an appointed time, and the day of payment is to happen, or may happen, before the thing which is the consideration of the payment of the money is to be performed, the performance of the thing is not a condition precedent to the right to demand the money. A general undertaking to pay money, without specifying the time of payment, obliges the party to pay immediately ; tout an undertaking to do *any*collateral act, as to convey lands, entitles the party to perform it at any time during his life, unless hastened by the request of the other party. Here the purchaser had a right to demand a conveyance immediately, and so the parties understood *it; as is proved by the stipulation to make improvements; and upon a demand made, and a failure tq convey, they might have maintained an action upon the covenant, before payment of the purchase money. But, the defendant never called upon the plaintiffs to convey the lot according to their contract; and until such a demand is made, and they fail, upon such demand, to make the conveyance of a good title, they are in no default, and have not violated their agreement. The defendant may now call upon them for a conveyance, and if they fail to convey a good title, recover damages for the breach of their agreement. In this case, the conveyance of the land, not only might, upon the terms of the agreement, be properly made after the time appointed for the payment of the money; but in the events which have happened, it may now be made in pursuance of the contract, long after that time. Upon this point, I think there is no error in the judgment.

As to the exception to the instruction of the Court, in respect to the measure of damages, I do not remember that this was relied upon in the argument of the cause. That instruction was right. The stipulated price of property sold is certainly the proper measure of damages for the non-performance of the contract, if no evidence is offered to shew that under the circumstances, some other measure is more proper.

The judgment should be affirmed.

The other Judges- concurred, and the judgment was affirmed.*