Nichols v. Raynbred – Case Brief
Nichols v. Raynbred, Hobart 88, 80 Eng. Rep. 238 (K.B. 1615).
Facts: Nichols (P) promised to deliver a cow to Raynbred (D) in exchange for 50 shillings. Raynbred did not pay, nor did Nichols deliver the cow. Nichols sued Raynbred for assumpsit (an action for recovery of damages for the nonperformance of a contract). The trial court entered judgment for Nichols and held that Nichols need not aver (allege or prove) that he delivered the cow in order to bring suit. Raynbred appealed.
Issue: Where an agreement is a promise for a promise, must a party perform before recovery on the contract is allowed?
Holding and Rule: In a promise for a promise a party need not perform before recovery on the contract is allowed.
The court held that in this case the agreement was an exchange of a promise for a promise and P was entitled to sue D for performance without showing that he himself had performed. The promises (not the performances) must be exchanged “at one instant”; otherwise the agreement will be construed as an unenforceable “nuda pacta” (an agreement not “clothed” with consideration).
Notes: In this case the court applied the early rule which held that in an exchange of a promise for a promise, each promise is treated as independent of the other. Each party is therefore entitled to sue the other for nonperformance, even if the party bringing suit had not performed. Naturally the party sued would be entitled to file a counterclaim for the suing party’s failure to perform.
For some reason many other case briefs do not analyze this case correctly and conclude that the court did not enforce the promise. In this case the court held that the exchange of promises was exchanged at one instant and the agreement was therefore enforceable. The issue is whether the exchange of promises occurred “at one instant” – not the performances. This is analogous to the “meeting of the minds” concept.