Law School Site - Case Brief
Kingston v. Preston,
2 Doug. 689 (K.B. 1773).
Dependent covenants --
Kingston (P) brought a
cause of action for debt for nonperformance, claiming that he had
begun performance and was willing to continue to perform but that
Preston (D) refused to perform. The substance of the contract was
that P would work for D for one and one-quarter years as a servant
and then D, upon P's presenting good security, would transfer his
business and stock in trade to P at a "fair valuation." D refused
to perform the transfer and defended P's suit, claiming that P did
not offer sufficient security.
Is the presenting of good
security a condition precedent to D's obligation to perform?
Yes. Judgment for D.
Before delivering the business to
P, P was to show good security for the payment of the money to be
received by D. Since P failed to give good security, D had no
obligation to perform.
court delineated three types of
(1) Mutual and independent. Either
party may recover damages from the other in the event of breach by
the other, and an alleged breach by one party is no excuse to the
(2) Conditional and dependent.
Performance of one party depends on the prior performance of the
other and, until the prior condition is performed, the other party
will not be held to performance of his covenant.
(3) Simultaneous. If one party
tenders and the other party refuses to perform, the first party
has an action for default against the refusing party.
Under modern law, however, each
party's performance (or tender of performance) is deemed an
implied- in-law ("constructive") condition to the other's
obligation to perform. Thus, neither party's duty to perform
arises until the other has
performed or tendered performance. For example, B
is under no duty to pay if S has
not delivered or tendered delivery; and S is likewise under no
duty to deliver the car if B has not tendered payment.
[Restatement (First) §266]
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