Wright v. Tuttle

Reeve, J. The plaintiff brought his action for the — 320 — breach of a covenant by the defendant in an indenture* which indenture the plaintiff stated, that the defend* ant bound his son an apprentice to the plaintiff to learn the art and mystery of printing, and covenanted among other things, that said apprentice should, make good to the plaintiff all the time that he might lose on account of sickness, and pay the plaintiff for all physic and attendance of physicians and surgeons that he might re* quire during the term of his apprenticeship; that during the term the said apprentice fell sick, and so continued for five months ; that by reason thereof he lost the service of said apprentice during that time, and had ex* ⅜ pended for him, in physic and in paying for the attend- -, anee of physicians and surgeons, the sum of one hundred and twenty dollars; that the said apprentice had never made up the lost time, and the plaintiff had never been paid the sum so expended for him, of all which the defendant had notice, and refused to fulfil his covenant aforesaid. And, thereupon, the defendant, having prayed oyer of the indenture aforesaid, recited it at large, and then demurred. That part of the indenture upon which the principal question in this case arose, provided that the plaintiff should procure and provide for the said apprentice sufficient meat, drink, lodging and washing, fit- *• ting for an apprentice, during the term of apprenticeship ; and also, in consideration of said apprentice having already obtained some knowledge of the business of printing, that the plaintiff should allow him at the rate of one hundred and ten dollars per annum, to be paid in cash or clothing, as it might be mutually thought his necessities required; provided, the said apprentice should make good to the plaintiff all time that he might lose on account of sickness or other account, and should pay for all physic or attendance of physicians or surgeons that he ⅛ might require during his term of apprenticeship. The defendant contends, that the words in the indenture which the plaintiff claims to be a covenant, are only — 321 — a qualification of the plaintiff’s covenant; and that the true construction of the indenture is, that the plaintiff was bound to pay at the rate of 110 dollars'per year, for the services of the apprentice, on condition that the apprentice mftde up the time lost by sickness, and paid the expenditures for physic, physicians and surgeons, and if the apprentice did not so do, the plaintiff was not obliged to pay him, the apprentice, any thing. The plaintiff contends, that those words contain a covenant on the part of the defendant, and that the construction of the indenture is, that he, the plaintiff, was bound to pay the apprentice during the term, at the rate of 110 dollars per year, and the defendant was bound to pay for loss of time by the apprentice, and the expenditures in physic, See. It is to be remarked, that no particular words are prescribed by law as necessary to make a covenant. The court must be governed by what appears to be the intent of the parties. I think it must be satisfactory to every person who examines this indenture, that what was to be performed by the plaintiff was to be done during the term of the apprenticeship; for he was to pay at the rate of 110 dollars per year, and it was to be paid in cash or clothing, as the apprentice’s necessities required. This leads the mind to conclude, that this clothing was to be furnished during the term of apprenticeship; for it is not probable that he was to furnish clothing for the apprentice after he had left the plaintiff, and was discharged from his service. There could be no reason assigned why the payment should then be in clothing; but the reason why it should be so made during the apprenticeship, is apparent; for although provision had before been made for board, lodging and Washing, .yet there was none for clothing; only by the provision in the covenant to pay for his services in cash or clothing as his necessities should require, as — 322 — was to be mutually agreed between them. That there should be a mutual agreement between them during the apprenticeship is perfectly natural. But that there should be a mutual agreement’ respecting furnishing clothing for a man no longer his apprentice, or member of his family» is improbable. If, then, the covenant, on the part of the plaintiff was to be performed during, and at the end of, the apprenticeship, his obligation did not depend upon the defendant’s paying for loss of time, &c. but he was bound to perform before it could be known that the apprentice would or would not make up lost time, or pay for physicians, &c. It follows, of course, then, that the words, “ provided the said apprentice shall make good to his said master all time he may lose on account of sickness or other account, and pay for all physic or attendance of physicians and surgeons that he may require during said term,” are not a qualification of the plaintiff's covenant, but an unconditional covenant of the defendant so to do. It is further urged by the defendant in this case, that if those words before alluded to, are to be considered as a covenant, the covenants in the indenture are dependent; and that in that case, the plaintiff must aver performance on his part, which the defendant insists has not been done in such manner as the law requires; that the averment in the declaration is only that the plaintiff has performed the covenants on his part to be performed, but that the averment ought to have been more specific, pointing out how he had performed them. It is true, the covenants are dependent, and averment of performance by the plaintiff must be made; and this has been done in the best possible manner. An averment of performance generally, in such a case as this, is not only sufficient, but it is the only proper mode. If the quo. modo had been averred, it would not have rendered the averment ill; but it would have been a needless surplus-age. Where a man avers that he has done a thipg — 323 — which involves in it a question of law, whether it is done as the law directs, the quo modo must be averred. As if a man had covenanted to release another, and he avers he has released him, he must also show how, that the court may judge whether it is a release in point of law. But when the thing covenanted to be done is a mere matter of fact, the quo modo need not be pointed out; but a general averment that he has performed on his part is the proper mode, and conformable to the English precedents in such cases. It is further urged by the defendant, that it does not appear that the physic was necessary. It is a sufficient answer that it appears certain, to a common intent, that some physic and some physical aid was necessary; for it is stated that the said apprentice was sick' five months* It does not, indeed, appear that as much as was expended was necessary, but that can have no weight; for any controversy respecting this question, it is the province of the jury to settle. If any was necessary, the declaration is supported. With this view of the subject, I am of opinion that there was manifest error in the judgment of the superior court. Mitchell, Ch. J., Edmond, Brainerd, Baldwin and J. C. Smith, Js. were of the same opinion. N. Smith, J. This was an action in favour of the master against the father of an apprentice founded on an indenture of apprenticeship. In the indenture, after various covenants, one is added wherein the master agrees, in consideration that the apprentice has already some knowledge of the trade, to allow him 110 dollars a year, either in money or clothing, as shall be mutually thought his necessities may require. Then is added a clause in these words: “ Provided the apprentice shall make good all the time he may lose on — 324 — account of sickness, and pay for all physic he may require." And the action is brought to recover for moneys expended to the amount of 120 dollars, for the apprentice when sick. But the plaintiff does not allege that it was necessary for the apprentice, or that he required it. The plaintiff then states in his declaration that this sum has never been paid; though he has kept and performed all the covenants on his part, but does not allege particularly that.the 110 dollars a year has been paid: which, as appears from the declaration, amounts to more than the 120 dollars, said to be paid out for the apprentice. The superior court adjudged this declaration insuf-⅜⅜⅛⅜-and I think that judgment was correct. This being an action against the father, for moneys expended for his minor son, it is an essential allegation that the expenditure was necessary. And a sound construction of the language of this covenant renders the father liable for such expenditures as were necessary, and for no other. The words “ may. require,” as used ⅛ this clause, mean the same thing as may be necessary, or may reasonably require. The plaintiff, then, shows no right to recover, without an allegation that the moneys so expended were necessary. But if we are to suppose the words may require, as used in this clause, .mean any thing different from what I have stated, there is, then, but One alternative. They must mean to subject the father for such expenses as the apprentice should request or desire. And there is no allegation that the minor ever requested, or desired, or in any sense required, this expense. The allegation that the apprentice was sick amounts to nothing; since it is not every sickness that requires expense. If we were to conclude it probable from those allegations, that the expenditures were necessary, still there is no allegation to that effect which is traversable. — 325 — I am also of opinion, that the allegation of performance on the pavt of the plaintiff, is insufficient to warrant a recovery of the defendant. The general expression of “though he has kept and performed all the covenants on his part,” means no more than that he has not violated any covenants on his part; and this would be true, if he had paid the surplus of the 110 dollars a year, after reserving the 120 dollars so expended. And yet, from this state of facts, it is perfectly obvious that the plaintiff would have no right to recover. In looking for the meaning of the parties to this indenture, I would not stop at the word provided^ but look through the whole instrument. The parties appear to be contemplating that the apprentice may want clothing in the fore part of the term, and in the part may fall sick, and require the expenditure of money. Should this be the case, and the 110 dollars a year be all actually laid out in clothing, before the expenses for sickness were incurred; it was doubtless their meaning that the moneys so paid out should be reimbursed. They appear, also, to have it in contemplation, that the 1 ID dollars a year may not be wanted for clothing, or, at any rate, not the whole of it. And the apprentice is not obliged to take any of it in clothing, if he can provide for himself otherwise; in which case he could demand payment in money at the end óf his time. But in this event, it was doubtless the meaning of the parties, that the apprentice should have no right to demand the money till he had first made up all lost time, and refunded all moneys expended on his account. The clause in question would, therefore, operate as a condition to the preceding covenant, or as a distinct independent covenant, as events should happen; and the, plaintiff cannot claim it as an independent covenant, without stating that he had paid out the stipulated sum for clothing. — 326 — If that sum has not been paid, neither party can recover of the other, unless there should be a surplus, after making the application; and then, it will be for the surplus only. In this way, complete justice is done between the parties, and, in my opinion, their manifest intention pursued. I am therefore of opinion, that, to entitle the plaintiff to a recovery, he ought to have stated that he had paid the sum in full which he stipulated to pay, or, at least, so much of it, as to leave a balance in his favour; and that the general allegation of “ although he had performed on his part” is insufficient to that purpose. Trumbull, J. concurred in this opinion. Swift, J. There is no word more proper to import or express a condition, than the word firovided; and it shall always be so taken, unless it appear from the context to be the intent of the party that it shall constitute a covenant. The question, therefore, arising in the construction of the instrument is, what was the intent of the parties? The manifest object of the parties appears to have been, to secure to the apprentice wages at the .rate of 110 dollars per year, allowing for clothing, sickness, and loss of time, from the circumstance that he had partially learned his trade. This circumstance is the consideration inducing the master to promise him wages; and the making up of lost time, and the paying of the expense of sickness, is a condition on which such promise is to be performed. When the proviso contains a stipulation to do an act which is the consideration of the promise on the other side, then the proviso ought to be deemed a' covenant: but if the proviso constitutes no part of the consideration, and is a mere circumstance on which the covenant is to be void or binding, then it cannot import' a covenant, but must be a condition. — 327 — The object of the parent and apprentice was to obtain some advantage from his having partially learned the trade. It was not their intent to make different covenants from what are usual as to support, clothing and sickness; yet it was not reasonable that the master should pay wages, if the expense of clothing and sickness and the loss of his time should be more than the value of his labour. It was, therefore, properly made a 'condition of the payment of wages, that the expense of sickness should be reimbursed, and the lost time made up ; but it never could have been intended by the parent and apprentice to take on themselves the expense of sickness, and the making up of lost time, which is never done in such cases, for the purpose of obtaining as much for wages as they might exceed the expense of clothing, when the consideration for the promise to pay wages is, that the apprentice has partially learned his trade. Suppose the apprentice had beei/ sick the whole time, and the amount of the wages had been paid to him in money and clothing; the father then would have been liable to pay the whole expense of sickness, and make up the whole time, on the construction of the covenant contended for by the plaintiff. Such could not have been the intent ; and it is evident that the word provided was introduced into the covenant for the express purpose of guarding against such an unreasonable construction. As to the declaration, it is a plain principle, that the plaintiff must state such facts as show he has a right to recover. It cannot be pretended that these covenants were independent, and the plaintiff entitled to recover all he paid for sickness, and the defendant the whole amount of wages. The fair construction is, that the plaintiff should recover only what he had advanced for sickness beyond the amount of wages; for otherwise the defendant might be entitled to recover, back for wages the same money he had just paid for expenses of sickness. — 328 — The plaintiff in his declaration has alleged, that hehas Performed his part of the covenant; that he has paid 120 dollars for sickness, which the defendant has not paid. There is no allegation that any money or clothing was mutually agreed tó be necessary for the apprentice. The plaintiff, therefore, performed his part of the ^agreement if he advanced nothing on that account; and as there is no averment that he advanced any thing, it does not appear from the declaration that the plaintiff paid either money or clothing on account of wages; admitting, then, that he paid 120 dollars for sickness, it does not appear that this was a greater sum than the apprentice was entitled to for wages; of course, taking every allegation to be true,-the plaintiff does not show any right to recover, or that the defendant has been guilty of a breach of his covenant. He ought expressly to have alleged what sums of money, and what clothing he had advanced on account of wages ; and to have shown that he had paid a certain sum for the expense of sickness beyond the amount of wages to which the apprentice was entitled. As this fact does not appear, the declaration was insufficient, and the judgment of the superior court ought to be affirmed. Judgment reversed.