Booth v. Tyson

The opinion of the court was delivered by Redfield, J. In this case, the only question is, whether that portion of the plaintiff’s claim, for moulding, upon a contract, to be paid, so much by the piece, (according to which, he has charged,) and to mould, or cast, fifty stoves of one pattern, and one hundred and fifty of the other, the contract being entire, and not performed, can be sustained. The auditor has allowed the account, according to the rule laid down in Dyer v. Jones, 8 Vt. 205, which deducts damage for the non-fulfillment of the entire contract. There is no doubt, that, in all contracts, where, by the terms of the contract, either express or implied, entire fulfillment is a condition precedent to any right of action, no recovery, whatever, can be had for part performance. Of this class are all contracts for labor, even where no express stipulation, to that effect, is contained in the contract, if the hiring be for a definite time, and there be no provision for any recovery for part performance. Steamboat Co. v. Wilkins, 8 Vt. 54; Ripley v. Chipman, 13 Vt. 268; Brown v. Kimball, 12 Vt. R. 617. But, in this state, it has been held,"that inevitable accident will excuse the entire performance, even where it is expressly made a condition precedent. Fenton v. Clark, 11 Vt. R. 557. This, however, is not, and never was, the English law. The rule, as stated above, is in strict accordance with the early English cases, but it is a rule of some harshness and severity, if not injustice, and in this state has not, as far as I know, been extended to any other class of contracts, except that of persons hired for a definite term ; and this, perhaps, partly upon the ground of strict authority, and that'such contracts are incapable of apportionment — not being of a uniform nature. [518] Forfeitures are always odious, both at law, and in equity. Conditions precedent, are in the nature of forfeitures ; and, for many years, the courts, both in this country, and in Eng-' land, have inclined so to construe contracts, as to avoid them. And, in the state of New-Hampshire, the supreme court, in a very elaborate opinion, have excepted even contracts for hiring for a definite term, from this unacceptable doctrine. Button v. Turner, infra. In this state, too, we have excepted a very extensive class of contracts from its operation, i.e. where the labor is bestowed upon the realty, and was not a hiring for a definite' term, but by the piece, as in the present case. -This has been done professedly upon the ground that it had become impossible to place the parties in statu quo; and, there being no express condition precedent, the court will construe the stipulations, as being independent and apportionable, and thus suffer a recovery for part performance, subject to a deduction for the damages sustained for the non-fulfillment of the entire contract, which could not be done, if entire performance were, strictly, a condition precedent to any right of action ; and no such recovery, in such a case, could be had, if the contract contained such an express condition precedent. The construction, in this state, has been extended to the case of clearing land, Dyer v. Jones; and of building stone wall, Gilman v. Hall, 11 Vt. 510. See, also, Button v. Turner, 6 N. H. R. 493. In England in the case of Oxendale v. Wetherell, 9 B. & C. 386, the court of king’s bench, in a very well considered judgment, have extended the same rule of construction to a case of an entire contract to deliver 200 bushels of wheat, at eight shillings per bushel, and a delivery of 135 bushels and a refusal to deliver the remainder, the price then being ten shillings. That case was decided so late as 1829. Although I am aware the New York supreme court, in Champlain v. Rowley, expressly overruled this decision, as an authority, still, we think the doctrine of the English case the sounder principle. In Cutler v. Clare, 5 Car. & P. 337, Ch. J. Tindall at N. P., followed the same rule. The principle of these cases seems to be, that, although the contract is, in one sense, entire, i.e. full performance on the part of the promissor is of the consideration of the contract, yet, if it contains neither expressly, or by strong im [519] plication, a condition of full performance, precedent to any right of claim for pay, and is of a uniform nature, and thus capable of just apportionment, the court will consider the promises independent and apportionable, and suffer a recovery for part performance, subject to the deduction of whatever damages the party, entitled to claim full performance, may have sustained. ■ This principle will clearly entitle the plaintiff to a judgment'on this report, and The judgment is affirmed.