Nelson v. Oren

Citations

• 41 Ill. 18

Syllabus

<p>1. Dependent and independent covenants—construction of assignment of a lease. An assignment of a lease was as follows: “ In consideration of fifty dollars to me in hand paid, I hereby assign, transfer and set over to O. M. Oren, his heirs or assigns, all my right, title and interest to and in the within lease, and the term therein contained, with all the privileges and conditions that I have therein, and I do hereby agree to deliver up possession of the within premises to. said Oren on the 1st day of May, 1864.” Held, that this was not one entire covenant conditioned for the delivery of possession on the day named, with a forfeiture of the fifty dollars, if it was not done, but the sum paid was the consideration for the unexpired term and the possession.</p> <p>2. So for the time the assignee was kept out of possession after the day fixed, he could recover damages against his assignor, but he could not recover back the whole consideration paid, because the agreement to deliver possession on a certain day constituted only a part of that consideration.</p> <p>3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration.</p> <p>4. Tender—when it must he kept good. A tender of money by a party who has broken his covenant, to avail him in an action brought for such breach, must be kept good by bringing the money into court. ‘</p>