Ligget v. Smith

The opinion of the Court was delivered by Gibson, C. J. Previous to the decision of Boone v. Eyre, 1 H. B. 273, note (a), it seems to have been taken that nothing less than entire performance of a mutual covenant would entitle the party to his action for a breach on the other side. In that case, however, a more reasonable and just rule was adopted, by which a mutual or dependent covenant, which goes but to a part of the consideration on both sides, and whose breach may be compensated in damages, is to be treated exactly as if it were separate and independent. This is distinctly the principle;' and it has been established by a train of decisions both in England and this country, which it is unnecessary to quote. Then apply it to the circumstances of our case. The plaintiff had covenanted to build a warehouse for the defendant, and “ to fill in all the brick work with mortar, or what is usually termed [333] flushing in, or filling in all the openings at each’ corner of the bricks with mortar as they are laid.” The warehouse was built; but it appeared that all the courses were not flushed in according to the contract; and that the want of it detracted from the strength of the building, which was necessarily destined to the bearing of unusual burthens. Did then this covenant go to the whole of the consideration, or but to a part of it 1 That it went but to a part is shown by the fact that it has been used as a warehouse since; and if it were entirely unfit for the original purpose, that ground of defence should have been- taken at the trial, and the fact have been required to be put to the jury. The point however was not made, and we are to consider the case as if it could not have been successfully made. The result is, that as the building as finished was not unfit'for the use to which it was destined, though less fit than it was stipulated to be, the imperfection in its construction did not reach the entire consideration, and that the plaintiff was properly allowed to recover his demand; less, a sum sufficient to compensate his defective execution of the contract. Judgment affirmed.