Meyers v. Myrrell

Bleckley, Judge. We recognize the doctrine that the tenant must perform his covenant, though to do so may involve re-building. But this case had a proper result, inasmuch as, according to the evidence, or to. the decided weight thereof at least, no breach of the covenant occurred. It was not made to appear, by a preponderance of evidence, that the wharf was not kept and returned in “serviceable condition.” Neither was it made to appear that any repairs were called for by the municipal authorities “for the safety or convenience of vessels lying at the wharf.” It would be an unwarrantable expansion of the covenant to hold that repairs demanded for the broad purpose of “ preventing injury to the river,” were to be made by the tenant in addition to those for which he expressly stipu [520] lated. The repairs which he engaged to make were those only that were necessary for the objects distinctly specified. On the obligation to perform, even to the extent of re-building: See 6 Term, 650; 3 Vesey, 34; 4th Camp., 275; Shep. Touchs., 173; 3 Saunders, 422, n. 2; 4 McCord, 431; 3 Denio, 294; 5 Barb., 666; 22 Ala., 382; 35 Miss. R. 618 ; Comyn L. & T., 202; Taylor L. & T., sections, 357, 360, 364 ; 16 Mass., 238; 3 Kent Com., 467, 468 ; Chitty on Contracts, 336; Broom’s Maxims, 233; 35 Cal., 416. Judgment affirmed.