4 Day 313 | Conn. | 1810
The plaintiff brought his action for the
The defendant contends, that the words in the indenture which the plaintiff claims to be a covenant, are only
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
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
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.
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
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.
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.
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.
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.
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.
Judgment reversed.