and promised to pay the plaintiff on a given date a certain sum of money, states facts from which the law will presume a consideration, though the contract is not set out in hæc verba.33 And the burden of proving the want of consideration sufficient to support a written instrument lies upon the party seeking to avoid it on that ground.34 The recital in a complaint of an executed or past consideration is not usually traversable, and requires little certainty, either of name, place, person, or subject-matter,35 although it should be known to both parties at the time of making the contract that the subject-matter is liable to a contingency by which it may be destroyed. If this contingency has already happened at the time, the agreement is without consideration.36 § 228. Alleging performance or excusing non-performance.— Where performance by the plaintiff is a condition precedent to his right to demand performance of the defendant, such performance must be averred in the complaint,37 and if the performance of a condition precedent not contained in the contract is necessary to create a right of action, such performance must be alleged.38 Of course, where non-performance is excusable the excuse must be alleged;3o e. g. where performance is prevented by sickness or death,° or by act of law,41 or by the destruction of the subject-matter by fire,12 or by the act of the defendant.43 So, also, where the defendant has repudiated the contract on his part, or has disabled himself from performing," in which cases the allegation of the fact without any averment of performance is sufficient. And where the defendant has waived performance by the plaintiff, 33 Henke V. Eureka Endowment Assoc., 100 Cal. 429, 34 Pac. 1089. 34 Cal. Civ. Code, § 1615; Poirier v. Gravel, 88 Cal. 79, 25 Pac. 962; Dimond v. Sanderson, 103 Cal. 97, 37 Pac. 189. 35 Gebhart v. Francis, 32 Pa. St. 78. 36 Allen v. Hammond, 11 Pet. 63, 9 L. Ed. 633. 37 Daley v. Russ, 86 Cal. 114, 24 Pac. 867; Dennis v. Strassburger, 89 Cal. 583, 26 Pac. 1070. 88 Dye v. Dye, 11 Cal. 167; Rhoda V. Alameda County, 52 Cal. 350; People v. Jackson, 24 Cal. 632; Himmelman v. Danos, 35 Cal. 448. 39 Wolfe v. Howes, 24 Barb. 174, 666. 40 Wolfe v. Howes, 24 Barb. 174, 666; Fahy v. North, 19 Barb. 341. 41 Jones v. Judd, 4 N. Y. 411. 42 Lord v. Wheeler, 1 Gray, 282. 43 Ruhle v. Massey, 2 Ind. 636; Clarke v. Crandall, 27 Barb. 73; Crist v. Armour, 34 Barb. 378; Rivara v. Ghio, 3 E. D. Smith, 264; Little v. Mercer, 9 Mo. 218; Burns v. Fox, 113 Ind. 205, 14 N. E. 541. 44 Dowd v. Clarke, 54 Cal. 48; Merrill v. Merrill, 95 Cal. 334, 30 Pac. 542; Newcomb v. Brackett, 16 Mass. 161. only the facts showing such waiver need be alleged. But this is imperative, for the plaintiff cannot plead performance and then recover upon proof of waiver of performance.45. It must be said, however, that this rule seems to be of little importance in view of the power of amendment given in the code.46 In pleading the performance of conditions precedent in a contract it is not necessary to state the facts showing such performance. It is sufficient to state generally that the plaintiff duly performed all the conditions on his part, and then if such allegations be controverted, the plaintiff must, at the trial, establish the facts showing performance." The object of this rule is to avoid prolixity by permitting plaintiff to aver generally, by grouping all the conditions to be "performed by him, that he has duly performed them all. And it is a sufficient averment to allege that he has fully and faithfully performed the said contract on his part." 49 50m It seems that the word "party," in the code provision that "it may be stated generally that the party duly performed all the conditions on his part, means the person or persons by whom the conditions were to be performed, and does not necessarily refer to the plaintiff.51 In an action on a contract by which the plaintiff had bound himself to do certain acts and to procure third parties to do certain acts the complaint alleged performance as follows: "And the plaintiff further says, that he and those on whose behalf the agreement was made and entered into by him have fully and faithfully performed and fulfilled all and singular the covenants and agreements in the said agreement contained." This was held to be sufficient.52 It must also be borne in mind that performance must be averred according to the intent of the parties. Thus a vendor of land who sues upon an agreement of sale containing a covenant on his part 45 Jerome v. Stebbins, 14 Cal. 457; Daley v. Russ, 86 Cal. 114, 24 Pac. 867; Romeyn v. Sickles, 108 N. Y. 653, 15 N. E. 698; McDermott v. Grimm, 4 Colo. App. 39, 34 Pac. 909. But see West v. Norwich Ins. Soc., 10 Utah, 442, 37 Pac. 685. 46 Cal. Code Civ. Proc., §§ 472, 473. 47 Cal. Code Civ. Proc., § 457; Fisk v. Henarie, 13 Or. 156, 9 Pac. 322; Blasingame v. Home Ins. Co., 75 Cal. 633, 17 Pac. 925; Louisville Underwriters v. Durland, 123 Ind. 544, 24 N. E. 221, 7 L. R. A. 399; Phoenix Ins. Co. v. Golden, 121 Ind. 524, 23 N. E. 503. 48 Woodbury v. Sackrider, 2 Abb. Pr. 402; Graham v. Machado, 6 Duer, 515; Rowland v. Phalen, 1 Bosw. 43. 49 Griffiths v. Henderson, 49 Cal. 570; Smith v. Mohn, 87 Cal. 489, 25 Pac. 696. 50 Cal. Code Civ. Proc., § 457. 53 that he will "make a deed for the property" must aver not only his readiness to "deliver a deed," but that he has a good title, free of incumbrance, which he is ready and willing to convey by a legal deed; and his failure to so allege is not cured by verdict.54 Where the promise declared on is in part conditional, and the performance or happening of the condition upon which the promise is to become absolute is not averred, the complaint is not sufficient to sustain a recovery as to such conditional part of the promise.55 § 229. Allegations as to performance where conditions are concurrent. With reference to contracts containing reciprocal covenants or mutual conditions which are to be performed at the same time, it may be stated as a sound rule that the mere allegation of readiness or willingness to perform is insufficient, and that the plaintiff must aver an actual tender of performance. It has been held that an allegation of performance or readiness to perform is all that is necessary;56 but the contrary rule has the unquestioned support of authority. Where, however, performance on the part of the plaintiff depends upon acts previously to have been done by the defendant, an averment of readiness and willingness will be sufficient. And where the promises in a contract are mutual, but not dependent upon each other, the plaintiff need not aver or prove performance on his part, and the defendant cannot avail himself of an allegation of breach by the plaintiff.59 While the rule just stated is well settled, difficulty is often encountered when it comes to determining what are and what are not independent covenants. Whether the stipulations in a contract are conditions precedent to the right to enforce performance 53 Washington v. Ogden, 1 Black, 456, 17 L. Ed. 203; Ankeny v. Clark, 1 Wash. 557, 20 Pac. 587. 54 Washington v. Ogden, 1 Black, 456, 17 L. Ed. 203. 55 Patrick v. Colorado Smelting Co., 20 Colo. 268, 38 Pac. 236. 56 Porter v. Rose, 12 Johns. 209, 7 Am. Dec. 306; Topping v. Root, 5 Cow. 404; West v. Emmons, 5 Johns. 179; Ducker v. Cochrane, 92 N. C. 597; Van Norman v. Wheeler, 13 Tex. 316. 57 Heine v. Treadwell, 72 Cal. 217, 13 Pac. 503; Englander v. Rogers, 41 Cal. 420; Bailey v. Lay, 18 Colo. 418, 33 Pac. 407; Jones v. Gardner, 10 Johns. 266; Gazley v. Price, 16 Johns. 267; Parker v. Parmele, 20 Johns. 130; Lester v. Jewett, 11 N. Y. 453. 58 West v. Emmons, 5 Johns. 179. 59 Corcoran v. Dougherty, 4 Cranch, C. C. 205, Fed. Cas. No. 3227; Sumner v. Parker, 36 N. H. 449; Smith v. Crews, 2 Mo. App. 272; Turner v. Millier, 59 Mo. 526; Dey v. Dox, 9 Wend. 129, 24 Am. Dec. 137. 61 is to be determined by the intention of the parties, derived from the contract itself, "by the application of common sense to cach particular case, rather than by technical rules of construction." co In general, it may be stated that where the acts stipulated in a contract are to be done at different times the covenants are to be construed as independent of each other. The question of consideration is often important. Where a. covenant goes to only part of the consideration on both sides, and the defendant has actually received a partial benefit,, the covenant is independent.62 If a time is stipulated for the performance of an act before the thing is to be performed. which is the consideration of the act, an action may be brought for failure to do the act without alleging tender by the plaintiff. And a contract is generally severable which apportions payment to different parts of the thing to be done, although the thing to be done may be in its nature single. and entire.". 64 63 It is also to be remembered, in connection with the rule that the intent governs, that stipulations in a contract are not to be construed as conditions precedent unless that construction is made necessary by the terms of the contract.65 So time will not be deemed of the essence of a contract unless it appears from the terms of the contract, in the light of all the circumstances, that such was the intention of the parties." $ 230. Averment of breach. In a suit on a contract the breach of the contract is the gist of the action, and it must be specifically averred in anequivocal language; although a general allegation will be sufficient to admit proof, and is subject only to a 60 Leéhard v. Dyer, 26 Conn. 172, 68 Am. Dec. 382. And see Hutchens v. Sutherland, 22 Nev. 363, 40 Pac. 409. 61 Goldsborough v. Orr, 8 Wheat. 217, 5 L. Ed. 600; Paducah etc. R. R. Co. v. Parks, 86 Tenn. 562, 8 S. W. 845. 62 Bennet v. Pixley, 7 Johns. 249; Tompkins v. Elliot, 5 Wend. 496; Morton v. Kane, 18 Ind. 191; Payne v. Bettisworth, 2 A. K. Marsh. (Ky.) 429. 63 Underhill v. Saratoga etc. Ry., 20 Barb. 455; Havens v. Bush, 2 Johns. 387; Seers v. Fowler, 2 Johns. 272; Wilcox v. Ten Eyck, 5 Johns. 78. 64 Siegel etc. Co. v. Eaton & Co., 165 Ill. 550, 46 N. E. 449; Bower v. Bagley, 9 Wash. 642, 38 Pac. 164. 65 Deacon v. Blodget, 111 Cal. 418, 44 Pac. 159. 66 Beverly v. Blackwood, 102 Cal. 83, 36 Pac. 378. 67 Moore v. Besse, 30 Cal. 570; People v. Central Pacific R. R., 76 Cal. 29, 18 Pac. 90; Curtiss v. Bachman, 84 Cal. 216, 24 Pac. 379; Schenck v. Naylor, 2 Duer, 675; Terre Haute, etc. Co. v. Sherwood, 132 Ind. 129, 32 Am. St. Rep. 239, 31 N. E. 781, 17 L. R. A. 339. motion to render it more certain." 68 The failure to allege a breach cannot be cured by verdict." The rule is otherwise, however, where the allegation of breach is merely defective," and in such case the defect can be taken advantage of only by special demurrer.71 In alleging a breach it is generally sufficient to follow and negative the words of the covenant declared upon,72 except where such an assignment of breach does not necessarily imply that the covenant has been broken.78 If a number of acts are included in one clause, the complaint must set forth the breach of each particular act upon which the plaintiff relies." But there is no objection to stating several breaches of an entire contract in one count or paragraph." The covenant need not be set out in hæc verba; a statement according to legal effect will be sufficient.70 Care should be taken that the breach assigned is neither broader nor narrower than the covenant declared on." Where the contract sued on is in the alternative the breach of both alternatives must be averred;78 and if the contract contain an exception or proviso it must be stated." Where the action is brought to redress a wrong worked by the breach of a contract, and the plaintiff only seeks to recover the general damages which have resulted, he need only set up the contract, state the facts constituting the breach, and allege generally that he has been damaged in a specified sum,80 and a demurrer on the ground that the complaint does not state facts sufficient is not well taken, since the plaintiff is entitled to 68 Trimble v. Stilwell, 4 E. D. Smith, 512. 69 Morgan v. Menzies, 60 Cal. 341; Grant v. Sheerin, 84 Cal. 197, 23 Pac. 1094; De Costa v. Comfort, 80 Cal. 507, 22 Pac. 218; Richards v. Travelers Ins. Co., 80 Cal. 507, 22 Pac. 939; Ballentine v. Willey, 3 Idaho, 496, 95 Am. St. Rep. 17, 31 Pac. 994; Miller v. Pine Co., 3 Idaho, 493, 35 Am. St. Rep. 290, 31 Pac. 803. 70 Thomas v. Roosa, 7 Johns. 461. 71 Grant v. Sheerin, 84 Cal. 197, 23 Pac. 1094; Bliss v. Sneath, 103 Cal. 43, 36 Pac. 1029. 72 Wolfe v. Luyster, 1 Hall, 146, (161); Brown v. Stebbins, 4 Hill, 154; Delavergne v. Norris, 7 Johns. 358, 5 Am. Dec. 281. . 73 Breckenridge v. Lee, 3 Bibb, 329; Julliand v. Burgott, 11 Johns. 6; Whitehill v. Shickle, 43 Mo. 537. 74 Wolfe v. Luyster, 1 Hall, 146 (161); Brown v. Stebbins, 4 Hill, 154. 75 Brown v. Stebbins, 4 Hill, 154. 76 Potter v. Bacon, 2 Wend. 583; Schenck v. Naylor, 2 Duer, 675. 77 Pumeroy v. Bruce, 13 Serg. & R. 186; Harris v. Mantle, 3 T. R. 307. 78 Fisher v. Pearson, 48 Cal. 472. 79 Latham v. Rutley, 2 Barn. & C. 20; Jones v. Cowley, 4 Barn. & C. 446; Tempany v. Burnand, 4 Camp. 20. 80 City of Pueblo v. Griffin, 10 Colo. 366, 15 Pac. 616; School Dist. v. Ross, 4 Colo. App. 493, 36 Pac. 560. |