2 Va. 167 | Va. | 1845
When the issue was made up in this cause, the parties agreed that the defendants and the plaintiff might give in evidence any matter which could have been specially pleaded or replied according to law. On the trial the Court instructed the jury, that if they were satisfied the plaintiff had performed that part of the agreement which related to the land, the stipulations became mutual and independent, enabling the plaintiff to recover against the defendants for failing to make the staves, without shewing he had sawed the timber. That for his failure he was liable to the action of the defendants for any damages they had sustained, but that such damages could not be allowed in this action. I think there was no error in the first part of this instruction. Covenants and agreements are construed according to the intention of the parties, and the good sense of the case. Though in form they may be dependent, yet to prevent injustice they are treated as independent. Boone v. Eyre, 1 H. Black. 273; Bream v. Marsh, 4 Leigh 21.
If this agreement were construed as dependent, the plaintiff will have lost his property without receiving any compensation. The defendants agreed to perform the work by a certain time. They could not be considered as undertaking to perform it at any subsequent period during their lives, however inconvenient it might be to do so. If the plaintiff sued, he would be compelled to aver and prove a performance on his part, to
But on the agreement of the parties here, there can be no doubt that the defendants could have relied upon this matter by a special plea under our statute.
I think, therefore, the instruction was erroneous in holding that the defendants could not be allowed in this
The other Judges concurred.
The judgment reversed, verdict set aside, and cause remanded for a new trial.