26 N.C. 497 | N.C. | 1844
Debt upon an instrument of writing under seal, of which the following is substantially a copy: "Articles of agreement between Walter Blake of the one part and Ephraim Clayton of the other part; whereby the said E. C. does agree to build a house on the plantation of the said W. B., situate, etc. (then describing particularly the kind of house,) the whole to be finished in a neat and workmanlike manner, etc. — said work to be completed by 1 April, 1842. And the said Walter Blake does agree on his part to pay $3,500 for the same, $1,000 to be paid on the 1st day of December next, and the balance when the house is completed." Dated 9 September, 1841, and signed and sealed by the parties. The plaintiff, after proving the execution of the instrument, proved that he finished the house for the defendant about the last of May or 1 June, 1842, and *362 (498) the writ was issued in August following. The $1,000, the first installment, was paid at the time stipulated. The defendant's counsel moved to nonsuit the plaintiff on the ground that the house was not completed by the time specified in the covenant, and that the plaintiff had not proved it was done in a neat and workmanlike manner, and also that the plaintiff had not notified the defendant of the completion of the work before he instituted his suit, and that the action of debt could not be sustained. His Honor charged the jury that the covenants were independent, and that if they believed the evidence offered, the plaintiff was entitled to their verdict.
The jury found for the plaintiff, and judgment being rendered pursuant to the verdict, the defendant appealed. The plaintiff has brought an action of debt upon the deed set forth in the case, to recover $3,500, the price of building a house for the defendant. The first installment of $1,000 was agreed to be paid by the defendant before the work was to be finished by the plaintiff; therefore that demand rested on an independent covenant. It has been paid, and there is no dispute as to that sum. The "balance" ($2,500) was to be paid when the house should be completed. The defendant resisted the plaintiff's recovery of this last installment on the ground that he did not prove on the trial that he had completed the house within the time mentioned in the deed, to wit, on or before the 1st day of April, 1842. The court instructed the jury that the covenants in the indenture on this point were independent and that the plaintiff was entitled to recover. The dependence or independence of covenants is to be collected from the evident sense and meaning of the parties; and however transposed they may be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance. Kingston v. Preston, cited inJones v. Blakely, Doug., 689; Wills., 496; Platt on Covenants, 79.
Taking the above directions as to the law on the subject we must say, that the judge erred in his charge. For we collect the intention and meaning of the parties to be that the $2,500 was to be paid if the plaintiff completed the house by the 1st day of April, 1842, at which time he had covenanted that the house should be completed. The word when, must have reference to the time antecedently agreed upon by the parties for the completion of the building; and that time was the 1st day of April, 1842. The completion of the house by the plaintiff (500) in a workmanlike manner in the time stipulated in the deed, *363 was, we think, a condition precedent to his right by force of his deed to claim the $2,500. This case is like that of Glazebrook v. Woodrow, 8 Term, 366, where the plaintiff covenanted to sell to the defendant a school house, and to convey the same to him on or before the 1 August, 1797, and to deliver up the possession to him on the 24 June, 1796; and in consideration thereof, the defendant covenanted to pay to the plaintiff 120 on or before 1 August, 1797. It was holden, that the covenant to convey, and that for the payment of the money, were dependent covenants; and that the plaintiff could not maintain an action for the 120, without averring that he had conveyed or tendered a conveyance to the defendant. Although the plaintiff may be unable to recover in his action as now framed, yet he may not be without remedy for such sum as he ought to recover. For if he has built a house for the defendant, which the latter has accepted and used, the plaintiff will be entitled to recover the just value of his work and labor, as estimated by a jury, in a proper action.
PER CURIAM. New trial.
Cited: Dameron v. Irwin,
(501)
