## Facts

- A vendor agreed in writing to convey a copyhold tenement to a purchaser on or before September 2 for £210, payable by the purchaser on or before the same date.
- The agreement included reciprocal “penalty” clauses: £21 payable by the purchaser upon failure to comply, and £21 payable by the vendor if the vendor did not deliver the estate as agreed.
- The vendor did not convey the estate by the contractual date and did not tender a conveyance.
- The purchaser did not pay the £210 purchase price.
- The vendor sued in debt to recover the £21 penalty from the purchaser for non-completion.
- The purchaser raised defenses including that the vendor neither conveyed nor tendered a conveyance and lacked an interest enabling conveyance at the time of contracting.
- Judgment below allowed the vendor to recover the penalty; the purchaser sought reversal in the Court of King’s Bench.

## Issues

1. Whether the covenants to convey the estate and to pay the purchase price were dependent (concurrent) covenants.
2. Whether a vendor may recover a contractual penalty for the purchaser’s non-performance without pleading and proving conveyance or tender of conveyance by the vendor.
3. Whether failure to perform or tender performance bars an action premised on the other party’s breach where the promises are mutually dependent.

## Decision

- The Court of King’s Bench held the covenants to convey and to pay were dependent.
- The vendor could not recover the £21 penalty without showing that the vendor conveyed the estate or tendered a proper conveyance.
- Because the vendor neither conveyed nor tendered conveyance, the action for the penalty could not be maintained.
- The court reversed the vendor’s recovery and entered (or directed) judgment for the purchaser.

## Legal Principles

- When contractual promises are dependent covenants, a party suing for breach must plead and prove its own performance or a valid tender of performance.
- In a land sale contract with concurrent obligations, the purchaser’s duty to pay (and liability for a stipulated penalty tied to non-payment/non-completion) is conditioned on the vendor’s conveyance or tender of conveyance.
- A contractual penalty clause does not create a stand-alone right of recovery when the plaintiff has failed to perform a dependent covenant that is a condition to the defendant’s liability.

## Conclusion

The court treated conveyance and payment as interdependent obligations and denied the vendor recovery of the stipulated £21 penalty because the vendor did not convey, and did not tender a conveyance, as required to place the purchaser in default.


Goodisson v. Nunn, 8 Term Rep. 366 (K.B. 1792)