By Court, CARPENTER, J. This is an action of assumpsit. The plaintiffs are commissioners, authorized by a decree of the orphans' court of the county of Burlington to make sale of the real estate of one Joseph C. Haines, who died seised thereof and intestate. The declaration is special, to recover the specific difference between a first and a second sale; the defendant, a purchaser at the first sale, having refused to comply with the conditions of such sale; and the premises on a second sale bringing a much less sum.

Though not made a point on the argument, doubts have been suggested as to the ability of the commissioners to bring a suit in their own names on the contract entered into between them and the defendant. I do not perceive any difficulty on that point. In the case of such sales, the deed can not ordinarily be previously prepared and ready for execution on the very day of sale; the purchaser until the sale has taken place being unknown; nor can the purchaser, in the uncertainty of becoming such, be expected to come with the funds to complete the contract. Convenience has rendered it desirable, and even necessary, to insert in the usual conditions of such sales, that the deed shall be delivered and the money paid or securities given, on a subsequent day. In order to bind both parties to the performance of their contract, such contract is necessarily reduced to writing and signed by the parties. I apprehend it will not lie in the mouth of a defendant, who has made such express stipulations with persons having a power of sale, to deny their ability to bring suits for a breach of such contract. The inconvenience would be great, which would result were a rule established that would destroy the ability of commissioners or public officers, selling by mere authority of law, to bring suit on an express agreement. It would place it in the power of any unscrupulous and designing person to bid off property, and afterwards to take it or reject it as caprice or interest might make it desirable. I do not perceive any inconveniences to follow the power. The commissioners are bound to sell for cash, and they must account for the whole sum, for which the property may have been sold. Any other course must be at the hazard of the persons making the sale, and is usually the result of special agreement; as an agreement on the part of the parties in interest to receive the securities taken by the commissioners. Such an arrangement is of frequent occurrence, because a credit given ordinarily produces a better sale. The proceeds of any suit brought by the commissioners, as in the present case, can not

be for their private benefit. Their duty under the authority of the law, being to some extent in the nature of a trust, the money recovered, after deducting expenses and a reasonable remuneration to the commissioners, will be the money of the parties in interest, for whose benefit the sale was made, and its payment over would be enforced by the proper tribunal.

In concurring in the propriety of setting aside the verdict in this case, I do so for the reasons and on the points following: 1. As to the resale. In order to entitle the plaintiffs to recover, in an action like the present, I hold that the second sale must be on the same conditions as the first, as near as may be; or, at least, on conditions equally beneficial to the purchaser, so far as regards the credit to be given. The remedy is harsh, and rests strictly on the contract; and, in my judgment, the plaintiffs ought to be held to show that they are within the spirit and letter of such contract. It might be ruinous to purchasers, if property could be offered for sale on a considerable credit, and in case of failure on the part of the purchaser to comply with the conditions, the property could be set up at a second sale, either for cash or a reduced credit, and the first purchaser held liable for the difference. Such failure may happen from ignorance, from inadvertence, from subsequent misfortune; and, in the application of an action so harsh and penal, the vendors should be held, in their subsequent sale, to conditions under which a disposition equally productive could ordinarily be expected. I hold the answer of the plaintiffs' counsel, that the vendors have a right to make the conditions of the second sale such, that the second sale, in regard to the credit given, shall be equally beneficial to them as the first would have been, had its conditions been complied with, to be unsatisfactory. Suppose the first sale to have been on a credit of one year-no unusual period of credit-in case of non-compliance, shall the vendors be permitted, at the end of a year, to offer the property again for sale, but for cash, and hold the first purchaser liable for the difference? In this case, the credit on the second sale was lessened, and I suppose materially, to the probable injury of the sale; but as I know of no mode by which the extent of such reduction may be ascertained and fixed, so as to produce no injury, I hold that the credit can not be reduced at all, if it is intended to resort to the first purchaser in this form of action in order to recover the difference between the two sales.

2. As the sale was made by the acre, it became necessary, on the part of the plaintiffs, to prove the number of acres in the

farm, in order ascertain the difference of the two sales and the extent of the alleged liability of the defendant. The plaintiffs offered no direct evidence of the number of acres. The dead, tendered by them to the defendant, described the premises as containing one hundred and forty-six and eighty one-hundre lths acres; and upon this quantity the plaintiffs based their claim, and the jury rendred their verdict. The proceedings in the orphans' court, the order of sale, etc., described the farm as containing about one hundred and fifty acres, more or less, and the judge who tried the cause instructed the jury that these proceedings were prima facie evidence of the quantity of land sold. In this I apprehend the judge erred. The vague description necessary merely to identify the property intended to be the subject of such proceedings, is no evidence to fix the liability of this defendant. Nor can the plaintiffs, though acting in a public capacity and under oath for the due performance of their duty, by their own statements in their report, or in their deed, be permitted to make evidence for themselves, in their own

cause.

But lastly: one of the conditions of sale in this case was: "The deed will be executed and ready for delivery to the respective purchasers, on the said twentieth day of March next, at ten o'clock A. M. of that day, at the house of Charles Bryan, innkeeper in Mount Holly, in said county; and in case any of such purchasers shall neglect to receive his deed at the said time and place, and pay, etc., the property will be advertised and sold again, and if it produce a less sum than the former bid and interest and expenses, the purchaser will be held liable for the difference." It is not necessary again to recite the particular terms of the payment to be made and the security to be given for the balance. It is sufficient to say, that it is a case of dependent covenants. In great relaxation of the technicalities, with which this branch of the law of contracts was formerly loaded and perplexed, it is not now the employment of any particular word, which determines a condition to be precedent, but the manifest intention of the parties. One of the rules, upon which the construction depends, is that where the mutual covenants go to the whole of the consideration on both sides, they are mutual conditions, the one precedent to the other. As where, in the conveyance of property, the whole of the consideration money is either to be paid or secured, on the delivery of the deed. Such is a plain case of stipulation for a contemporaneous performance, a performance uno flatu, and where neither

party intends to trust the other. In agreements for purchase indeed, it is now well settled that the covenants are to be construed according to the intent of the parties, and are therefore always to be construed dependent, unless a contrary intent appears: 1 Sug. V. and P. 271 (372); Bank of Columbia v. Hagner, 1 Pet. 464; in Glazebrook v. Woodrow, 8 T. R. 374. The seller ought not to be compelled to part with his property, without receiving the consideration; nor the purchaser to part with his money, without an equivalent in return. Therefore, if either a vendor or vendee wishes to compel the other to observe the contract, he immediately makes his part of the agreement precedent; for he can not proceed against the other without an actual performance on his part, or a tender and refusal. On the one hand, the purchaser can not maintain an action for the nondelivery of the deed, without having first paid or tendered the money: Harvey v. Trenchard, 1 Halst. 126; Ackley v. Elwell, 5 Id

So on the other hand, a vendor can not bring his action, for breach of the contract, without first having executed and tendered the conveyance, unless the purchaser has discharged him from so doing; and an averment of such tender must be made in the declaration, and must be supported by proof: Egbert ads. Chew, 2 Green, 447; Bank of Columbia v. Hagner, 1 Pet. 467; Johnson v. Applegate, Coxe, 233; Green v. Reynolds, 2 Johns. 207.

To be sure, if the one party has discharged the other from the strict performance of the condition; if he has rendered the execution and delivery or tender of a deed, futile and unnecessary by an express declaration that he will not receive it; then, the party proceeding by setting out that excuse upon the face of the declaration, may be relieved from the necessity of proving the offer to perform his part of the mutual agreement. If the defendant prevent the performance of a condition precedent by his own neglect or default, it is equal to a performance by the plaintiffs: Hotham v. East India Co., 1 T. R. 638. In the case of Jones v. Barkley, Doug. 684, where the plaintiff was ready and offered to perform his part, but was discharged by the other; upon averring such discharge in the declaration, it was held that the plaintiff might maintain his action without proving a tender. But if a party plead a tender he must prove it: Per Buller, J., Doug. 695. Such may be regarded as the unquestioned rule. It is unnecessary to examine the letter, written by the defendant to one of the commissioners, to ascertain whether it contains such a declaration of the defendant's intention not to receive the

deed and fulfill his part of the contract, as would relieve the plaintiffs from their duty to execute and tender the deed. They have not pleaded the discharge, and therefore can not use the letter, for the purpose of showing a waiver on the part of the defendant of his right to the performance of this condition precedent. Unless pleaded, the waiver, if any, can not be proved. The plaintiffs have pleaded a tender, and they must prove it according to the averment in the declaration.

As I hold it, the time fixed for the performance, is at law deemed of the essence of the contract. It is true that it is not, generally, so considered in equity, unless the parties have expressly so treated it, or it necessarily follows from the nature and circumstances of the contract. Courts of equity, for the most part, have regard to time only so far as it respects the good faith and diligence of the parties. Thus courts of equity, sometimes, will not decree a specific performance, though damages may be recovered at law. So those courts frequently decree a specific performance, when the action at law has been lost, by the default of the very party seeking the specific performance, if it be notwithstanding conscientious that the agreement should be performed. It is thus, in cases where the terms of the agreement have not been strictly performed on the part of the person, seeking specific performance; though to sustain an action at law, performance must be averred according to the very terms of the contract: 2 Story's Eq. Jur., sec. 776, et seq.; 1 Sug. V. and P. 245, 340; Taylor v. Longworth, 14 Pet. 174; Hertford v. Boore, 5 Ves. jun. 719, note to Sumner's ed.

"The general opinion," says Sir Edward Sugden, vol. 1, 294, "has always been, that the day fixed was imperative on the parties at law. This was so laid down by Lord Kenyon, and has never been doubted in practice. The contrary rule would lead to endless difficulties." He adds, that perhaps the power, assumed by courts of equity, of dispensing with the literal per formance of contracts is to be regretted. In the case alluded to before Lord Kenyon, it was held, that according to the conditions or covenant, and the pleadings thereupon, the seller of an estate was bound to be prepared to produce his title deeds at a particular day, and to prove such readiness and that he did produce them: Berry v. Young, 2 Esp. 641. So in an action of covenant to build a certain mill in a certain place and by a certain time, and an averment accordingly, it was held that the declaration was not supported by proof, that the mill was erected after the time, by the consent and agreement of the defendant. The

AM. DEC. VOL. XLIII-41