v. Conradt, 13 N.Y. 108 (1855).
Varick contracted to sell some land to Beecher (D) upon the
express condition that D pay $396 in equal annual
installments. Varick transferred the contract to Conradt (P).
Although D did not pay his installment payments, P did not
bring suit until the last installment became due. P sued to
recover the full contract price. D argued that since the
action was brought for the full purchase price, P could not
recover without tendering conveyance of the land. The trial
court disagreed and granted P recovery of the purchase price.
The New York Supreme Court affirmed. D appeals.
Does the fact that full
performance by both parties became simultaneously due defeat
the independence of the covenant to pay on an installment
Yes. Judgment reversed.
Since D had not sought to
recover the separate installments, the parties are in the same
situation as though the purchase price were payable at one
time. In order for P to recover, he must show, by tendering
conveyance, that he is entitled to all of the unpaid
consideration; a new trial is ordered.
No time set for
Constructive conditions concurrent will also be implied when
no time is set for performance but the promises are capable of
near simultaneous performance.