Moss v. Stipp , 3 Va. 159 ( 1812 )

the Court (consisting of Judges Fleming, Roane, Cabell, and Coal^er) affirmed the judgment.

The following observations were made by

Judge Fleming.

All contracts or agreements, are to be taken and construed according to the true meaning and understanding of the contracting parties.

In the latter part of the agreement before us, are the following plain words ; to wit, “ It is also understood by the parties aforesaid, that the deed is not to be made until the aforesaidfirst payment is made, and the security given for the residue as aforesaid. In witness,” &c. The plaintiff in his declaration states, that he had kept and performed the said contract, in all parts by him to be kept and performed, &c. And according to the unanimous opinion of the Court, in the case of Rawson and Others v. Johnson, (1 East, 203.,) “ One man,” says Lord Kenyon, £< agrees tó do a certain act in consideration of another man’s doing another act; the acts are to be done at the same time andp'ace ; it is sufficient for the plaintiff to aver that he was ready at the time and place to perform the agreement on his part.” In this case the defendant was, by the agreement, not only to pay before he received a deed for the land, 2,400 dollars, but also to give security for payment of the residue of the purchase money; to wit, 400 dollars more. And it is in proof, even by his own witness, that he was unable to pay more than 1800, out of 2,400 dollars, which he hadv stipulated to pay on the 1 st day of May, 1804. I am, upon the whole, of opinion, that the declaration is sufficient ; that the demurrers to the second and other pleas, are good ; and that the judgment be affirmed.