2 Ala. 320 | Ala. | 1841
The form of the covenant, or the manner in which the several stipulations to be performed by either party, are stated in the agreement, is of very little importance; because Courts must frequently construe covenants to be entirely independent, even in cases where a dependence is indicated by express words.
Thus, in Boone vs. Eyre, 1 Henry Black. 273, the plaintiff conveyed to the defendant the equity of redemption of a West India plantation, together with the stock of slaves on it, in con
So, in the present case, the contract of lease was executed, and it would seem to be absurd to conclude, that the right to receive the stipulated rent could be lost, by the omission of the plaintiff either to insert a pane of glass, or to erect the corn crib.
There is also, in this case, another feature which enables us to ascertain the intention of the parties with unerring certainty. The contract, in part, was executed by the plaintiff, and as to the other portion, the execution was postponed to a future day. It is impossible, therefore, that the stipulations of these parties were intended to be mutual and dependent. The defendant cannot be permitted to insist that he is relieved from his contract, by the failure of the plaintiff to perform a part of the matters covenanted by him. [Campbell vs. Jones, 6 Term. 670; Carpenter vs. Cresswell, 4 Bingham 409.]
This conclusion disposes of all the questions raised on the demurrer to the declaration; and would also, be sufficient to dispose of the rejected plea, if that also had been demurred to.
1 The plea was presented after the pleadings had been made up, and the application then to plead another, is always addressed to the discretion of the Court, and its decision is not subject to revision.
The strict rule adopted in most Courts, would throw the defendant on his cross action; but the case of Green vs. Lenton, 7 Porter 133, settles, that the damages in an action of covenant may be reduced, by showing that the defendant has sustained damages by the plaintiff’s omission to perform stipulations contained in the same agreement. The rule adopted in that case, was, in substance, the one given in charge to the jury.
There is no error, and the judgment is affirmed.