Kingston v. Preston Case Brief

Summary of Kingston v. Preston
King’s Bench, ENG [1773]

Performance and Constructive Conditions

Relevant Facts: Pl and Df entered into an agreement where the Df would serve the Pl for 1yr and a 1/4 as a servant in his trade as a silk-mercer for 200 pounds a year. In consideration for the business premises the Df covenanted that at the end of the period he would give up the business to Pl, his nephew, or some other person named by Df, give them his stock in his trade, at a fair value; and that btwn the young traders deeds of partnership for 14 yrs would be executed. Immediately afterward the young traders would carry out the business in the Df’s house. The agreement also stated thereafter the Pl would at and before the sealing and delivery of the deeds cause and procure good and sufficient security to be given to Df, 250/mo, in lieu of the monthly production of stock in trade until the value of the stock was reduced to 4000 pounds. At the end of the period the Df did not surrender the premises b/c the Pl did not offer the security.

Legal Issue(s): Whether the Pl’s tender of sufficient security was a condition precedent to the

Df’s surrendering of the premises, and stock?

Court’s Holding: Yes

Procedure: Lower ct ruled for Df; Affirmed.

Law or Rule(s): Covenants called conditions and dependent, in which the performance of one depends on the prior performance of another, and until this prior condition is performed, the other party is not liable to a an action on his covenant.

Court Rationale: The dependance or independence, of covenants was to be collected from the evident sense and meaning of the parties , and however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance.

The essence of the agreement was that the Df should not trust to the personal security of the Pl, but before he delivered up his stock and business, he should have good security for the payment of the money. The giving of such security, therefor, must necessarily be a condition precedent.

Plaintiff’s Argument: The covenants were mutual and independent, where either may recover damages for the injury he may have received. It is no excuse to allege a breach by pl.

Defendant’s Argument: The covenants were dependant in nature; the security to be given for money was unreasonable to oblige Df to give up his business, stock, and trust Pl’s personal security, which might be worthless.

Transposed – changed or translated.



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