KCourt of King's Bench (Lord Mansfield), 1773draftborradorunverifiedsin verificar

Kingston v. Preston

2 Doug. 689, 99 Eng. Rep. 437 (K.B. 1773)

An apprentice who wanted the business before he posted the security for it

In one lineEn una línea: Mutual promises in a bargain are dependent covenants: a party who has not performed or tendered his own obligation cannot sue to enforce the other's.Las promesas recíprocas de un contrato son covenants dependientes: quien no ha cumplido ni ofrecido cumplir su propia obligación no puede exigir la del otro.
RuleRegla: Whether covenants are dependent or independent depends on the evident sense and meaning of the parties, not the order of the words; where one party's performance is the essence of the other's bargain, performance (or tender) of the first is a condition precedent to the duty of the second.
Why this case is herePor qué está aquí este caso: The origin of constructive conditions of exchange (Part V): promises in a bilateral contract are presumed dependent, so a party who has not performed (or tendered) his own promise cannot demand the other's. Everything about order of performance and material breach flows from it.
Procedural posturePostura procesal: The apprentice sued the master for refusing to transfer the business; the master pleaded that the apprentice had not given the required security; the court held for the master.

Facts

Preston, a silk mercer, agreed to take Kingston as apprentice and, after a term, to transfer the business to Kingston and a nephew; Kingston in turn promised to give good and sufficient security for monthly payments for the stock. Kingston demanded the transfer without having provided the security; Preston refused.

Procedural posture

Kingston sued; Preston pleaded the missing security; judgment for Preston.

Issue

Whether Kingston could enforce the promise to transfer the business without having given the security he promised.

Holding

No. The security was the essence of the agreement; the promise to transfer was dependent on it, so Kingston’s failure excused Preston.

Reasoning

Lord Mansfield rejected the argument that the promises were independent because each party could sue on the other’s covenant: it would be absurd for Preston to hand over his stock to a man of no property in exchange for a lawsuit. The dependency of the covenants follows from the sense of the transaction.

Rule (own words)

In an exchange, your right to the other side’s performance depends on your own. First do, or offer to do, your part.

What-ifs

Both performances were due on the same day with nothing to be done first: concurrent conditions; each must tender to put the other in breach.
The contract expressly said the transfer would occur regardless of the security: independent covenants by agreement; Kingston could sue, and Preston could sue separately.
Kingston tendered the security a week late: question of material breach versus substantial performance, Jacob & Youngs territory.

Likely follow-upsRepreguntas probables

What are Mansfield's three kinds of covenants?

Mutual and independent (each may sue without performing); conditional and dependent (one must perform first); and mutual conditions to be performed at the same time (concurrent; each must tender).

Why does this matter for the exam?

Every question about who breached first, whether a party may suspend, and whether tender was required starts here; R.2d §§ 234 and 237 restate the presumption of concurrent conditions and the effect of uncured material failure.

constructive conditions of exchange dependent and independent covenants order of performance condition precedent, concurrent and subsequent

Compare withComparar con: Jacob & Youngs, Inc. v. Kent (extends)

AssignedAsignado: 2026-11-05

Read the public opinionLeer la opinión (texto público). SourceFuente: Own brief from the public report as discussed in the casebook; verify quotations against the report..