Langworthy & Clark v. Smith

By the Court, Savage, C. J. This cause comes before the court upon a demurrer to the several counts in the declaration. The action is founded on a contract under seal, by which the plaintiffs covenanted to erect a certain bulk head in the east river, to be completed by a certain day; and the defendants covenanted to- pay, &c. In two of the counts the plaintiffs do not even aver performance by the day mentioned. In the other two, they offer as an excuse for not performing by the day, an enlargement of the time by the defendants. There can be no doubt that a paroi enlargement of the time set in a sealed instrument for the performance of covenants is good; but there can be as little doubt, at this day, that where there is such enlargement of a condition precedent, the plaintiff loses his remedy upon the covenant itself, and must seek it upon the agreement enlarging the time of performance. This question arose in Jewell v. Schroeppel, (4 Cowen, 566,) where Sutherland, J. says, “ It is abundantly settled that the plaintiffs, inasmuch as they had not performed within the time stipulated by the original contract, could not recover upon the covenants contained in it. They could not, in such action, give evidence of an extension of the time.” The cases referred to fully support that position. In the case of Little v. Holland, (3 T. R. 590,) the plaintiff declared in covenant. He was to build two houses for the defendant by a certain day; and on the trial it appeared that the work was not done by the time, but that the time was enlarged by paroi, and the work was done within the enlarged time. The judge held that this evidence did not sup 591 port the allegation in the declaration, and the plaintiff was nonsuited, and the court refused a rule to shew cause why it should not be set aside. Brown v. Goodman, (3 T. R. 592, n. b.) was an action of debt on an arbitration bond, in which the time was limited for the arbitrator to make his award. The declaration stated that the time was enlarged by mutual consent, and that the award was made within the enlarged time. On demurrer, lord Kenyon said the plaintiff had no remedy on the bond; by that the defendant had bound himself to abide an award to be made within a given time, but that could never extend the penalty to an award made under a new agreement. The case of Little v. Holland was recognized as good law in Philips v. Rose, (8 Johns. R. 392, 3,) where the plaintiff had agreed to build an oil mill by a certain day, but built it by another day, and within the enlarged time. The court said that evidence that the contract was enlarged by paroi agreement will not support the declaration, The case of Brown v. Goodman has also been recognized by this court in Freeman v. Adams, (9 Johns. R. 110.) That was an action on an arbitration bond, on the back of which the parties had endorsed an agreement under seal, enlarging the time for making the award, and it was made within such time. The court said that by the decision of Brown v. Goodman, an action would not lie on the bond; the party has another remedy upon the submission implied in the agreement to enlarge the time. They go on to say, that if a contract be subsequently changed, you must declare otherwise than on the contract itself; and they distinguish between cases where actions are brought upon su.ch agreements, and those cases where the enlargement of time is presented by way of defence, as in Fleming v. Gilbert, (3 Johns. R. 528,) where such an enlargement was held to be a good defence. The cases cited by plaintiff’s counsel are cases of that description. It follows that the parts of the"declaration demurred to are bad, and the defendants are entitled to judgment upon the demurrers.