30 N.C. 421 | N.C. | 1848
This is an action of debt upon a covenant. The plaintiff undertook and built a courthouse in the town of Charlotte for the county of Mecklenburg, and bring this action to recover the price agreed to be paid. The defendants were commissioners appointed by the County Court to make the contract, and the action is against them, upon the ground that by the deed executed by them they are personally bound for the money. The covenant is as follows: *308
CHARLOTTE, 30 July, 1842.
Know all men by these presents, that we, Stephen Fox, etc.,commissioners for and on behalf of the county of Mecklenburg, of the one part, and John Dameron of the other part, witnesseth, that whereas the said John Dameron hath agreed to build a courthouse for the county of Mecklenburg, in the town of Charlotte, according to the specifications marked A, etc., the said Stephen Fox, etc., for and in behalf of the county of Mecklenburg, on their part do agree that upon the execution of said contract fully, and according to the terms thereof, etc., by 1 January, 1844, then, and in that case, to pay to the said John Dameron, etc. It is further understood and agreed that (422) the commissioners aforesaid may make payment, etc.
It is admitted that the building was not erected within the time specified for its completion, nor according to the specifications; but that the departures from it were made with the knowledge and consent and by the directions of the defendants, and that the building was, after the summer of 1844, used and occupied by the court in the transaction of public business. It was further admitted that the lot upon which the building was to be erected was not purchased by the defendants until 27 April, 1843.
Upon intimation from the court that the plaintiff could not maintain his action, he submitted to a nonsuit and appealed. The action is in debt, and the plaintiff claims the money to be paid for building the courthouse. Two objections are urged against his right of recovery: one that the defendants are not personally liable, and the other that the plaintiff did not perform his contract by building the house within the time and according to the terms specified. Both objections are fatal.
The plaintiff sues upon the sealed instrument, and in his declaration must set forth the terms of it, or its legal effect, and in general practice it is usual to set forth the words of the contract. 1 Chitty Plead., 299, 302. In the contract in this case the plaintiff was bound to finish the courthouse by 1 January, 1844, at which time, also, the money was to be paid, if the work was done. The defendants agree that upon the execution of said contract, fully and according to the terms thereof, the specifications, etc., by 1 January, 1844, then and in that case to pay, etc. It is admitted that the courthouse was not erected according to the specifications nor within the time prescribed. *309
There was, then, a fatal variance between the allegation (423) and the proof. The latter did not support the former. The plaintiff, however, says that the variations were all made by the directions of the defendant, and that the house was not finished within the time because the defendants did not furnish the ground until 27 April, 1843, and that the courthouse was received and used by the court. There is no doubt that the plaintiff is entitled to receive the value of his work and labor done, and materials found by him; but not in this action, which is brought on the covenant to pay. He cannot declare on one contract and recover on a different one. The defendants expressly agree that the money shall be paid upon the execution of the work at the time specified and according to the specifications. The covenant to pay the money is dependent upon the execution of the work according to the agreement. The plaintiff, then, cannot recover in this action without an averment of performance. Clayton v. Blake,
We see no error in the opinion of the presiding judge.
PER CURIAM. Judgment affirmed.
Cited: Brown v. Hatton,
(426)