Nesbitt v. McGehee

RICE, J. —Where a contract under seal is materially varied, by a subsequent valid contract under seal, the plaintiff cannot recover under a declaration which sets forth the former contract only, and a breach of it. His safe course is, to set forth both contracts, and an appropriate breach. McVay v. Wheeler, 6 Porter’s R. 201; Barelli v. O’Conner, 6 Ala. 617. The declaration in this case shows, that on the 28th day of January, 1847, the parties sealed and executed a certain agreement in writing, the terms of which are stated ; and that on the 18th day of February, 1847, they sealed and executed an additional agreement, in relation- to the subject-matter of the prior agreement, the terms of which are also stated. The declaration shows, that the right of the plaintiff to a recovery is founded on the breach by the defendant of his covenants shown in the original and additional agreements above mentioned. The additional agreement (among other things) imposed an additional duty or obligation upon the defendant, to-wit, “ that each log of timber before specified (in the original agreement) should make at least four pieces of string timber, six by seven inches, of heart pine.” The two agreements together constitute the contract of the parties. No plea to such a declaration can be good, which confines itself to an averment of performance of the obligations imposed upon the defendant by the original agreement, and is silent -as to the additional obligation imposed upon him by the additional agreement. Every such plea must be held insufficient, upon the principle, that a plea which undertakes to answer the whole declaration, but in truth answers only a part of it, is bad. It is unnecessary to say anything more as to the first and second pleas, to which demurrers were overruled by the court below ; for it is clear, from what we have said, that the court below erred in overruling the demurrers to them. The only other questions presented for our examination, [755] arise out of the charge given, and the refusal of the charge asked by the plaintiff; and to the discussion of these questions we now proceed. The contract of the parties in this case is contained in the two aforesaid written agreements, both of which are set forth in the declaration and in the bill of exceptions. That contract fixes the order of time in which the acts of the parties were to be performed by them respectively : “ The said McG-ehee covenants and agrees to deliver to the said Nesbitt, at the water’s edge, at his steam-mills at Cedar Bluff, all the stocks for string timber for the Memphis Branch Railroad, agreeably to the said Nesbitt’s contract, made January 18th, with the engineer of said road, the stocks to be of heart pine, and each eighteen and a half feet long, sufficient to make each piece of string timber eighteen feet long and six by seven inches square, heart pine ; the timber to be delivered as fast as required for sawing, say one hundred stocks per week, more or less, as may be necessary” ; and “ each log of timber, as before specified, shall make at least four pieces of string timber, six by seven inches, of heart pine. And the said Nesbitt, on his part, covenants and agrees to pay the said McGehee, when the above contract shall have been faithfully complied with, at the following rates, to-wit, forty-five cents per stock ; and-that he will make his payments in the following manner — that is to say, on the twentieth day of every month during the progress of this contract, he will pay seventy-five per cent, of the relative value of such timber as may be delivered, until the whole of the timber herein contracted for shall have been delivered agreeably to contract, when the balance shall be forthwith paid to the said McGehee”; and “ when a log will make more than four pieces, the said Nesbitt shall pay unto the said McGehee for each piece over and above the four pieces, in the same proportion as is given per log.” The numerous decisions on the vexed question of what are, and what are not, dependent covenants, cannot be reconciled. They all agree in one particular — that is, in the recognition of the universal rule, that the intent of the parties, to be collected from the contract itself and from a common-sense view of it, must control the court in determining whether the [756] covenants are dependent or independent. “ Their precedency (said Lord Mansfield) must depend on the order of time in which the intent of the transaction requires their performance.” The parties have an undoubted right, if they please, to make their Covenants dependent or. independent throughout, or to make the covenants independent as to one thing, and dependent as to another. They have a right to mould their contracts so as to suit their mutual convenience and interests; and when the courts can ascertain their meaning, they are so to construe the contract as to give effect to that meaning, provided the purpose be lawful. They must be held to have intended the performance of their respective acts, in the order of time indicated by their covenants.—Cunningham v. Morrell, 10 Johns. R. 203; Grant v. Johnson, 1 Selden’s R. 247; Drake v. Goree, 22 Ala. 409; Rives v. Baptiste, 25 Ala. 382. The application of the rules of law above stated to the aforesaid contract of the parties, makes it manifest, that at least one act was to be performed by McGehee before any liability against Nesbitt could accrue under the contract:— that act was, the delivery (during each of the weeks intervening between'the 18th day of February, 1847, and the 20th day of March, 1847, at the specified place, of such a number of logs of the specified size and description (not exceeding one hundred per week) as was necessary to afford constant employment to the steam-mills of Nesbitt in sawing them during the usual working hours of each day of said several weeks (Sundays excepted). If that act was performed by McGehee, then, if Nesbitt failed to pay him the seventy-five per cent, of the value of'the logs so delivered, (estimated according to the measure of value prescribed in the contract,) on the 20th day of March, 1847, such non-payment entitled McGehee to abandon the contract, if he chose to abandon it. But, if McGehee failed to perform that act, such failure was a breach of his covenant, and instantly vested a right of action in Nesbitt. Nesbitt was under no obligation to employ a sawyer, until after McGehee commenced delivering the logs according to the contract; and until McGehee commenced delivering logs, as required by the contract, it was immaterial to him whether Nesbitt had a sawyer, or whether Nesbitt’s mills were actually at work,- for he (McGehee) could and [757] should have commenced the delivery as he had covenanted to do, whether the .mills were idle or at work, or whether Nesbitt bad a sawyer or had not employed one. The delivery by McGehee, as herein above pointed out and described, was a condition precedent, — it was the first thing to be done undgr the contract.— Chitty on Cont. 635, 636; Lord v. Belknap, 1 Cushing’s R. 279; Ennis v. O’Conner, 3 Harris & Johns. 163; Weaver v. Sessions, 6 Taunton’s R. 155. If a right of action vested in Nesbitt as aforesaid — that is, by the failure of McGehee to make the delivery aforesaid— then the rule applies, that the cause of action- caHnot be discharged by any act of the plaintiff, short of a release, or the acceptance of something in satisfaction of that cause of action. Leavitt v. Smith, 7 Ala. 182, and cases there cited; Baylis v. Usher, 4 Moore & P. Rep. 791; Willoughby v. Bockhouse, 4 Dowl. & R. Rep. 539; Bowman v. Teall, 23 Wend. 309; Spivey v. Morris, 18 Ala. 254. Hence it is clear, that if McGehee failed to deliver any logs until the 9th day of May, 1847, or otherwise broke his covenant, he could neither bar this action, nor acquire a right to abandon the contract, by proving merely that on said last named day he entered on the performance of his contract, and continued at intervals to deliver stocks during the term of one month and seventeen dayfrom that day; and that plaintiff received them without' objection, and used them for string timber, and that plaintiff from thence hitherto has failed to pay anything for them. Whether such evidence may not go in reduction of damages, we are not now required to decide ; but we hold, that it does not, per se, constitute a bar to this action.—Allen v. Greene, 19 Ala. 34. We wish it noticed, that what we have above decided relates to the contract itself, and the rules of construction applicable to that contract, as it came from the hands of the parties. These rules of construction are sometimes confounded with the -doctrine of waiver by matters ex post facto. As to this doctrine, we decide nothing at this time.—Grant v. Johnson, 1 Selden’s R. 252; Lucas v. Godwin, 3 Bing. N. C. 737; Chitty on Cont. 634, 636; Wallis v. Long, 16 Ala. 738; Havelock v. Geddes, 10 East, 555; Story on Bail. § 441; Story on Cont. § 741. [758] We deem it unnecessary to give any particular examination to tbe charge asked and refused, or to express an opinion as to its correctness. Tbe charge given was erroneous. For tbe errors of tbe court below in giving that charge, and in overruling tbe demurrers to tbe first and second pleas, its judgment is reversed, and tbe cause remanded.