Sharp v. White

• Decision Date: 09 February 1829
• Citation: 24 Ky. 106
• Parties: Sharp v. White.
• Court: Kentucky Court of Appeals

24 Ky. 106

Sharp v. White.

Court of Appeals of Kentucky.

February 9, 1829

Covenant. Independent. Pleas. Consideration. Failure. Demurrer.

ERROR TO THE ANDERSON CIRCUIT; THOMAS M. HICKEY, JUDGE.

Triplett for plaintiff.

OPINION

ROBERTSON JUDGE:

To an action of convenant by White, on a written promise to deliver whiskey, the plaintiff in error filed three pleas, demurrers to all of which being sustained by the court, a verdict and judgment were rendered for damages.

Two first pleas promise to deinsufficient.

Covenant on liver whisky. The pleas.

The first and second pleas, are filed, as pleas impeaching the consideration; but are both clearly insufficient.

Demurrers and sustained.

The first alleges, in substance, that the covenaant was given in consideration of the sale by White, to Sharp, of a sixty-five gallon still, then in White's furnace, and which White agreed to deliver to Sharp, on request; but that sometime afterwards, being requested, he failed, and refused to deliver the still, and therefore, the consideration of the covenant had failed.

This plea shows on its face, that the conclusion drawn from the facts stated, is a non sequetur. The covenant for the whisky, and the promise to deliver the still, are obviously independent, and either party for a breach, may maintain an action, without a performance of his undertaking. The consideration of the covenant, is not the delivery of the still (the failure in which, is the subject of complaint) but the promise to deliver it, whenever requested. The promise is still in full force, and its breach gives a perfect cause of action. The consideration is therefore still valid and subsisting; and the plea is bad; 1 Bibb, 454; 4 Bibb, 342, 386, 493; and Young v. Triplett, 5 Littell, 247.

The covenant independent, and either party can maintain an action without performance.

Thesecond plea is liable, not only to the same objection, but another; it does not even state a contract to deliver the still.

But the third plea, is substantially good, although it is not drawn with precision, or technical propriety. It is intended to be, and may be understood to be, a plea alleging that the covenant was procured by the fraud of White. This being its import, it is issuable, and if true, is a bar to the action. It would have been better to specify the fraud in the plea and it is more usual to do so; but it is not necessary. A general plea of...