Hill v. Bishop

GOLDTHWAITE, J. 1. Judges have often perplexed themselves and others, by endeavoring to ascertain determinate and arbitrary rules under which to class all covenants. After repeated failures in such efforts to settle rules, it seems now to be generally conceded, that the safest and best course is, to ascertain what was the intention of the parties from the instrument they have executed, and then to give it such a construction as will carry this intention into effect. [Kingston vs. Preston, 2 Doug. 689; Glassbrook vs, Woodrows, 8 Term. 371.] The form of the covenant, or the manner in which the several stipulations to be performed by either party, are stated in the agreement, is of very little importance; because Courts must frequently construe covenants to be entirely independent, even in cases where a dependence is indicated by express words. Thus, in Boone vs. Eyre, 1 Henry Black. 273, the plaintiff conveyed to the defendant the equity of redemption of a West India plantation, together with the stock of slaves on it, in con [323] sideration of an annuity for life, and covenanted a good title to the plantation, and was lawfully possessed of the slaves; and the defendant covenanted he would pay the annuity, the plain* tiff well and truly performing all and every thing therein contained, on his part to be performed. The breach assigned was, the non-payment of the annuity. The defendant pleaded that the plaintiff, at the time of making the deed, was not legally possessed of the slaves or- the plantation, and so had not a good title to convey. To this, there was a general demurrer; and it was held, that as the covenants in relation to the slaves went only to a part of the consideration, and as the breach could be paid for in damages, the plea was not good ; for, if it was allowed, any slave, not being the property of the defendant, would bar the action. It will be perceived, that the lands and slaves were conveyed; so the contract on the part of the plaintiff was executed. So, in the present case, the contract of lease was executed, and it would seem to be absurd to conclude, that the right to receive the stipulated rent could be lost, by the omission of the plaintiff either to insert a pane of glass, or to erect the corn crib. There is also, in this case, another feature which enables us to ascertain the intention of the parties with unerring certainty. The contract, in part, was executed by the plaintiff, and as to the other portion, the execution was postponed to a future day. It is impossible, therefore, that the stipulations of these parties were intended to be mutual and dependent. The defendant cannot be permitted to insist that he is relieved from his contract, by the failure of the plaintiff to perform a part of the matters covenanted by him. [Campbell vs. Jones, 6 Term. 670; Carpenter vs. Cresswell, 4 Bingham 409.] This conclusion disposes of all the questions raised on the demurrer to the declaration; and would also, be sufficient to dispose of the rejected plea, if that also had been demurred to. 1 The plea was presented after the pleadings had been made up, and the application then to plead another, is always addressed to the discretion of the Court, and its decision is not subject to revision. [324] 3. The same may be said of the refusal to continue the case ; but if this was subject to revision, we should hesitate for a reason to show that a party ought to be obliged to wait for one portion of his just demand, because another might be disputed. 4. The estimate, which the defendant placed, on the improvements and repairs, even if made in the presence of the plaintiff, was not proper to go before the jury as evidence, for it cannot be considered as an admission of their value ; and if it cannot be considered in this light, there is no pretence for it. admission. 5. We can perceive no error of which the defendant is allowed to complain, in the instructions given to the jury. The amount to be paid ás rent, was stipulated, and we have already shown that the omission of the plaintiff to perform what he had stipulated, does not discharge the defendant’s liability. The strict rule adopted in most Courts, would throw the defendant on his cross action; but the case of Green vs. Lenton, 7 Porter 133, settles, that the damages in an action of covenant may be reduced, by showing that the defendant has sustained damages by the plaintiff’s omission to perform stipulations contained in the same agreement. The rule adopted in that case, was, in substance, the one given in charge to the jury. There is no error, and the judgment is affirmed.