Sherwin & Salpaugh v. Rut. & Bur. Rail Road

By the Court. This case presents the naked question, whether the plaintiff having contracted under seal to perform certain labor upon the defendant’s road, by a specified time, which was subsequently enlarged by parol, can sue in covenant. The case of Porter v. Stewart, 2 Aiken 417, expressly decides, that he cannot, and that case has never been questioned, in this State, although the case of Little v. Holland, upon which the case of Porter v. Stewart is professedly based, has been sometimes doubted elsewhere. But although resting upon the merest technicality, it seems to us sound. It goes upon the ground, that performance, on the part of the plaintiff by the time stipulated, is a condition precedent to any right of action on his part, as, in a case like the present, where performance on the part of the plaintiff is the entire consideration for the defendants covenant, it always is. And also that the contract, being under seal, cannot be varied, by a mere paro} contract, whether in writing or not, since such a contract is inferior to the original contract. But if the defendant hinder the plaintiff from full performance of a condition precedent, or if he expressly waive it, under his hand and seal, he is estopped from insisting upon the failure of plaintiff in his defense; he is estopped in the one case by his own wrong, and in the other by his deed. This rule does not apply to written contracts, not under seal.— Then both contracts, being of the same grade, the whole being set forth, and performance alledged, within the enlarged time, assumpsit will lie. So too where the covenants are independent of each [350] other, one may maintain an action without avering performance on his part. But in a case like the present, it is now considered, that if the party chooses to sue upon the contract specially, he must declare in assumpsit, treating the enlargement as having incorporated the original terms of the contract into itself, and so all resting in parol, Vicary v. Moore, 2 Watts R. 451. Chit, on Con. 113 and notes. How far the party -in such a case would be entitled to sue in a general action, it is not necessary to consider. The case of Myrick v. Slason et al., 19 Vt. R., is not applicable to this subject, for many reasons. No question of the effect of the subsequent alteration of the contract under seal is there made, as there was no evidence of any such thing. The plaintiff there claimed to recover in book account for an attempt to perform his contract, without any waiver or alteration of the contract, and where all he had done had been done and received under the contract. It is there said the plaintiff’s remedy was under the contract, in covenant and not on book. But as the - question was not before us, we did not intend to decide whether-, upon the facts there found, the plaintiff could recover in any form. We presume, however, that after the decision then made, no one ever supposed he could. Judgment affirmed. Redeield, J. My own views, upon the subject of the alteration of contracts under seal, are fully expressed in Lawrence v. Dole, 11 Vt. R., 549, upon more examination of the-subject, than is now in my power. It is there said, “ Where this alteration is “ in regard to a condition precedent, and is necessary to be shown “ by the party afterwards seeking redress upon 'the contract, it is “ required, that the alteration should be by a contract of as high a “ nature as the original contract; else the party performing the al- “ tered contract will lose his remedy, i. e., upon the original con- “ tract, or in covenant.” The rule is there held to be different, where the alteration is relied upon by way of defense.