
    Lewisburg.
    White’s adm'x v. Toncray.
    (Absent Brooke, J.)
    Covenant between T and W. T agrees to transport for Wfrom his works, from 1800 to 5000 barrels of salt annually for three years from date, water permitting, and insure the safe delivery of same to W, or his consignees, on the top of the bank of Tennessee river, at any point that W shall direct, from Florence to the mouth of said river. For which W agrees to pay T 25 dollars per ton. T reserves the privilege of delivering at Marathon one third part of said salt; and for such part delivered at Marathon, W is only to pay 22 dollars per ton. For all salt received by T at the works and not delivered as above, T is to allow W1 dollar 25 cents per bushel, and 46 cents for each barrel, except that for all salt lost by staving or sinking the boats used in the transportation thereof, T is to be charged only 50 cents per bushel, and 46 cents for each barrel. Held :
    1. The agreement of T to transport the salt, and of W to pay him therefor, imports an implied covenant by W to allow T to transport the salt, and to furnish him with the agreed quantities for that purpose.
    2. If the condition of the navigation is such that the salt cannot be transported, T is absolved from the obligation to transport it; and W is absolved from the obligation to deliver it.
    3. The agreement is not for the transportation of an aggregate amount of salt in the course of three years, but for the transportation of from 1200 to 5000 barrels in each year of that period.
    4. The election of the annual quantity within the specified limits, is with W the manufacturer, and not with T the carrier.
    5. T is entitled to transport within the year all the salt that W delivers in that year; and if he does so, his right in regard to the quantity to be transported the next year, is not thereby affected.
    6. T is bound to transport within the year all the salt he receives from W; and if he fails to do so, he is still entitled to transport at least 1200 barrels of Ws salt the next year, if the contract has not then expired; but having it already in his hands, he has no right to call upon W for the delivery to him of 1200 barrels more.
    7. The transportation of the salt which T already has in his hands in the next year, will be a compliance with his contract for that year; and Ws permitting him to do it will be equivalent to an actual delivery by W of the same quantity for that year.
    
      8. If T wilfully fails to transport the salt received by him in the first or second year, he is bound to transport it in the second or third year; and cannot withhold it, and at the same time call upon W to supply what he already has in his own hands.
    9. In asserting a breach of the contract by W, whether by refusing to pay for transportation, or by refusing to permit it, T must confine himself to a single year, or declare distributively for several years.
    10. It is the business of T to attend at the works of W, at such times as suit his convenience, to receive the salt from time to time, as he is ready, and commence its transportation, and to apply for the instructions requisite as to its points of transportation. And if he commences the transportation without requiring such instructions, any loss to him thereby occasioned is attributable to his own fault.
    11. In an action on this covenant by T, he can only recover for a breach of the covenant by W, or for services rendered by himself in accordance with the covenant; and he cannot recover for services rendered in pursuance of a parol agreement changing the provisions of the covenant, or for any thing done by him by the directions of W] not according to the terms of the covenant.
    12. The price of the salt lost by the staving or sinking of the boats used in its transportation is fixed by the covenant, and must fix the allowance to W on that account.
    13. There is a demurrer to each count of the declaration, and the demurrers are overruled, and then there is a trial on issues made up on pleas, and verdict and judgment for the plaintiff. On appeal the judgment is reversed, verdict set aside, and the demurrers are sustained; and the cause is remanded for a new trial, with liberty to the plaintiff to amend his declaration.
    This is the sequel of the case of White v. Toncray, reported in 9 Leigh 347. When the cause went back to the Circuit Court, the plaintiff Toncray, filed an amended declaration containing five counts; in all of which the covenant declared upon was set out in substantially the same terms. The material provisions of the covenant as set out, were, that by a covenant in writing duly executed, under seal, on the 25th of August 1823, it was agreed between Jamies White in his lifetime and the plaintiff, that the plaintiff should transport for White from Saltville, from 1200 to 5000 barrels of salt annually, for three years from the date of the covenant, if the state of the waters of the Holston and Tennessee rivers permitted; and should safely deliver the same to the said White, or to his consignees, on the top • of the bank of the Tennessee river, at any point that White should direct, from Florence, below the muscle shoals to the mouth of said river; except one third part of said salt, which the plaintiff reserved the right to deliver, if he thought proper, at Marathon. And for the transportation and delivery of which as aforesaid, White covenanted with the plaintiff to pay him 25 dollars for each ton delivered between Florence and the mouth of the Tennessee river, and 22 dollars for each ton delivered at Marathon; in payment for which the plaintiff was to allow for all salt received by him and not delivered as aforesaid, 1 dollar 25 cents a bushel, and 46 cents for each barrel containing it; and the balance due the plaintiff for said transportation, was to be paid to him by White in twelve months from the date of the delivery of the salt. That if any of the salt was lost in the river by the staving or sinking of the boats used in the transportation thereof, on satisfactory proof thereof made by the plaintiff, he was only to be charged fifty cents for each bushel so lost, and forty-six cents for each barrel containing it.
    The first and second counts averred, that on the day after the date of said covenant, the plaintiff commenced receiving and transporting salt, and delivered safely on the top of the banks of the said rivers, to White or his consignees, from Florence to the mouth of the Tennessee river, at such points as White directed, four hundred and seventy-six barrels of said salt. And that within the time stipulated he delivered barrels of said salt at Marathon. And that he was ready and willing, within the time stipulated in the covenant, to deliver other large quantities of salt at points on said river between Florence and the mouth of the river, but that White, finding it unprofitable to him to have the salt delivered below the muscle shoals, requested the plaintiff to deliver most of the salt received by him for transportation under said covenant, at Marathon, and at points above that place on said river; and that the plaintiff ^ ^me lifted in the covenant, at the special instance and request of White, deliver safely to said White, or his consignees, on the top of the bank of said river at Marathon, and at points above that place on said river, other large quantities of salt received by him at Saltville aforesaid, to wit, barrels ; which the said White received from the plaintiff in discharge of his obligation under said covenant, and agreed to pay the said plaintiff therefor the same price which by the covenant he was to pay for salt delivered at Marathon. That the plaintiff continued to transport salt in performance of the stipulations of his covenant, under the directions of White, and deliver the same as directed and required by White, until the 19th of August 1825, on which day White refused to deliver to the plaintiff any more salt; from which day the plaintiff was prevented, by the wrong of the said White, from further fulfilling his covenant; and after which time he received from said White but thirty-eight barrels of salt. That to enable him to fulfil his covenant with White, the plaintiff had made large engagements with wagoners to haul salt from Saltville to his boats on the Holston river, and had paid them; great part of which he had lost by the wrong of said White in refusing to deliver the salt; and that he had made large preparations in horses, wagons, boats, &c., to the amount of 2000 dollars, for which, by the wrong of said White, he had received no benefit. And it was further averred that of the salt delivered to the plaintiff, six hundred and five barrels were lost by the staving and sinking of the plaintiff’s boats, for which he was to be charged fifty cents per bushel, and forty-six cents for each barrel containing it, which was all the salt so lost, the plaintiff delivering, according to contract and the directions of White, all other salt received by him for transportation, except barrels, for which he was to be charged . in payment of transportation as aforesaid, 1 dollar 25 cents per bushel, and forty-six cents for each barrel containing it. And for the salt so lost the plaintiff offered to make to White in his lifetime satisfactory proof thereof; but the said White refused to hear the same. And that the plaintiff had in all things performed his covenant so far as it was incumbent on him to perform the same ; but that the said White had refused to perform the same on his part in refusing to deliver to the plaintiff at Saltville, from twelve hundred to five thousand bushels of salt annually, during the three years aforesaid; whereby the plaintiff lost all his preparations aforesaid, which were principally directed to the last year of his contract: the said While having delivered only a small quantity of salt during the two first years, and none during the third year, except the thirty-eight barrels aforesaid. That the said White did not prepare agents or consignees to receive the salt at the several points designated, by which the plaintiff lost much time, and was put to great expense, to wit, 500 dollars. Nor did the said White, within twelve months from the date of the delivery of the salt aforesaid by the plaintiff, pay to him the amount due, or any part thereof, for the transportation of the said salt.
    The third count only varied from the first and second in omitting the averment, that the plaintiff had, at the request of White, delivered a part of the salt received for transportation at points on the Tennessee river above Marathon.
    
    The fourth count charged, that by the true intent and meaning of the covenant, White was bound to deliver to the plaintiff annually, for the three years, between twelve hundred and five thousand barrels of salt, at the election of the plaintiff; and to keep on hand at Salt-
      
      mile, ready for the plaintiff, to be delivered to him when called for, the said quantity of five thousand barrels of salt annually, during the three years aforesaid, to be . transported by him when the waters in said rivers per- > an^ ^jave consignees always ready to receive the salt so transported. That the plaintiff, by the request of White, and according to the true intent and effect of the said covenant, did deliver safely large quantities of salt within the time and in the manner stipulated, at Marathon, and at points on the Tennessee river above that place, for which he was entitled to receive 22 dollars a ton so delivered; that being the price stipulated by said covenant, and verbally, to be paid by the said White for all salt delivered by the plaintiff at Marathon, or any point on the Tennessee river above that place. That the plaintiff proceeded to transport the salt, and delivered between Florence and the mouth of the Tennessee river, four hundred and seventy-six barrels; and that on the 19th of August 1825, White refused to deliver to the plaintiff any more salt; from which day, by the wrong of said White, the plaintiff was prevented from fulfilling his said contract; and after which time, he received no more salt of the said White, except about thirty-eight barrels; and during that year, the plaintiff had elected to take and transport five thousand barrels. In other respects, the averments were substantially the same as the first and second counts.
    The fifth count averred that the plaintiff commenced on the day after the date of the covenant receiving salt from White at Saltville, and transporting the same down the said rivers, under the directions of said While, and delivering the same to him or his consignees, according to his covenant, and at points on the Tennessee river designated by said White, until the 19th of August 1825; during which time, the plaintiff delivered between Florence and the mouth of said river, four hundred and seventy-six barrels; after the delivery of which four hundred and seventy-six barrels, at the points aforesaid, the said White, finding it unprofitable to have any more salt delivered at said points, refused to receive any more salt from the plaintiff at said points, although the plaintiff was ready and willing to deliver at said points all the salt which by the terms of his covenant he was bound to deliver; but the said White required the plaintiff to deliver most of said salt, transported within the period aforesaid, at Marathon, and at points on said river above that place, to wit, barrels ; which the plaintiff averred he did deliver at the points last mentioned, by the directions of said White, and in consequence of his refusal to receive the same at points from Florence to the mouth of said river. That after the said 19th of August 1825, the said White refused to deliver to the plaintiff any more salt; from which day, the plaintiff was prevented by the wrong of said White, from fulfilling his said contract. That to fulfil his contract, he had necessarily incurred great expense in procuring materials, &c., amounting in the whole to 2000 dollars, all of which he lost by the wrong of said White. And that the said White had broken his covenant by not permitting the plaintiff to perform his said covenant by the delivery of any more salt at points on the Tennessee river, between Florence and the mouth of said river; (which he averred was much more profitable to him than to deliver it at points higher up on said river.) That the said White, after the 19th of August 1825, refused to deliver to the plaintiff any more salt at Sallville for transportation; and did not deliver to the plaintiff annually, during the three years aforesaid, the salt which, by the terms of the covenant, he was bound to deliver, and the plaintiff entitled to receive for transportation ; whereby the plaintiff’ lost the whole of his preparations aforesaid, which were principally directed to the last year. And that the said 
      White did not, within twelve months from the date of the delivery of the salt aforesaid, pay to the plaintiff the amount due him for the transportation of the salt so delivered, or any part thereof.
    The defendant demurred to each count of the amended declaration; but the Court overruled the demurrer to the first, second, third and fifth counts, and sustained it to the fourth.
    The defendant then pleaded covenants performed, on which plea an issue was made up. And he tendered five other special pleas, which were objected to by the plaintiff, and were rejected by the Court: To the opinion of the Court rejecting said pleas, the defendant excepted. The first of these pleas, was a plea of setoff; and the claims set up in the plea were for money due from the plaintiff to the defendant for rent of a house, and a sawmill; for goods, wares and merchandize delivered and advanced to the plaintiff; for money paid for plaintiff; for money due for salt delivered under the contract to plaintiff, which he had not transported according to the covenant, or accounted for; for money due for salt which plaintiff had lost by sinking and staving the boats on which he attempted to transport the same, under the said covenant; and for money due for other salt which the defendant had sold and delivered to the plaintiff.
    The second special plea, by way of traverse to so much of the plaintiff’s declaration as alleged an excuse for not making proferí of the original of the deed declared on, denied that the original contract was then or ever had been in the defendant’s possession.
    The third special plea alleged, that between the 25th of August 1823, and the 25th of August 1825, the said James White, with intent under said covenant of procuring to be transported from Sultmlte to points upon the Tennessee river below and above the muscle shoals, as stated in said covenant, and otherwise agreed upon by said parties, at least 1200 barrels of salt per year in each of these years, delivered to the plaintiff at Saltville, within the two years, for said purpose, 4640 barrels of salt, which the plaintiff removed from the saltworks, at the time of delivery, to his boatyard on the north fork of Holston river, about twelve miles from Saltville; and there, in violation of his covenant, permitted the same to remain ; except 1353 barrels thereof. And the plea alleges, that plaintiff did not perform his covenant, in that he did not transport to the said points of consignment on the Tennessee river, the quantity of salt so delivered to him for transportation, in either one of the said two years; nor did he transport 1200 barrels in each of said two years. And the plea avers, that the water was sufficient to enable the plaintiff to transport 1200 barrels of salt in each of said two years.
    The fourth special plea alleged, that James White, in his lifetime, did keep his covenant to deliver to the plaintiff the salt, which by the covenant, he was to deliver for transportation, in the three years in the covenant mentioned, in this, that between the 25th of August 1823, and the 25th of August 1825, he delivered to the plaintiff for transportation, as in the covenant provided, 4640 barrels of salt, which the plaintiff received and deposited at his boatyard, his point for embarkation, on the north fork of Holston river; and that within the time aforesaid, the plaintiff transported to the points of consignment but 1353 of the said 4640 barrels of salt; and on the 25th of August 1825, at the commencement of and within the third year in the covenant mentioned, there were remaining in the possession of the plaintiff for transportation, at said point of embarkation, and not transported, more than 1200 barrels of said 4640 barrels aforesaid.
    The fifth plea was a plea of payment, by James White in his lifetime, of the full amount of freight due plaintiff, and claimed in each count of his declaration.
    
      At a subsequent time, the defendant filed another plea, alleging that White in his lifetime had paid the plaintiff 1000 dollars in full discharge of the plaintiff’s claim for freight; and on this plea, issue was joined. then on the trial of the cause, there was a verdict and judgment for the plaintiff for 4000 dollars damages: Whereupon the defendant applied to this Court for a supersedeas, which was granted.
    There were several exceptions taken during the progress of the trial to opinions of the Judge, but they were not considered by the Court, and therefore need not be stated.
    The case was argued by Patton and Sheffey, for the appellant, and the Attorney General and Caperton, for the appellee.
   Baldwin, J.

delivered the opinion of the Court.

In the written contract on which this action is founded, there is no express covenant on the part of White, the appellant’s intestate, to deliver salt to Ton-cray, the appellee, for transportation ; but the agreement of Toncray to do the transportation, and of White to pay him therefor, import an implied covenant on the part of White to allow and permit Toncray to transport the salt, and to furnish him with the agreed quantities for that purpose. The implied covenant of White in this respect is the correlative of the express covenant of Toncray. The latter agreed to transport for White from Saltville, from 1200 to 6000 barrels of salt annually, for three years from the date of the contract, water permitting ; from which is to be inferred an agreement on the part of White, that Toncray should receive so much salt annually at Saltville for transportation, if the state of the water permitted it. If the condition of the navigation should be such that the salt could not be transported, then Toncray was absolved from the obligation to transport it; and in the like event, White was absolved from the obligation to deliver it. Any right of action on the part of Toncray, upon this contract, would be founded upon his claim to the stipulated compensation for his actual transportation of the salt; or upon his claim to damages for having been prevented from transporting it, by the failure or refusal of White to deliver it. In the latter case, if the condition of the water did not allow his transportation of the salt, the delivery of it to him by White could have availed him nothing. The reciprocal liabilities, therefore, of Ton-cray and White, in relation to the transportation of the salt, were both dependent upon the same condition : if the state of the navigation did not allow the transportation of the salt, White could have no action against Toncray for failing to transport it, and Toncray could have no action against White for failing to deliver it.

The agreement of the parties was not for the transportation of an aggregate amount of salt, in the course of three years; but for the transportation of from 1200 to 5000 barrels of salt in each year of that period. This Court, looking to the nature and object of the contract, held, on the former appeal, that the electiou of the annual quantity, within those limits, was with White the manufacturer, and not with Toncray the carrier. The election of White was, however, determined as to any one year, by the quantity delivered by him in that year; the whole of which Toncray was at liberty to transport in the same year; and if he did so, his right in regard to the quantity to be transported the next year was not thereby affected. But there was a corresponding duty on the part of Toncray, to transport in any one year the whole quantity received by him for that year; and his inability or refusal to do so, could not but affect his right in regard to the quantity to be received the next year.

Let us suppose that in the first year of the contract, Toncray had received from White for transportation the minimum, or the maximum quantity provided for by the agreement, that is to say, either 1200 barrels or 5000 barrels, and that the state of the navigation prevented him from transporting any of it, and that the whole of it remained in his hands at the end of that year. It is obvious that the purposes of both parties would have been defeated in regard to that year. White would have lost his contemplated markets for that year, and Toncray would have lost his compensation for transportation ; and the salt would have been White’s salt in the hands of Toncray. Still Toncray would have a right to transport at least 1200 barrels of White’s salt in the second year; but having it already in his hands, he would have no right to call upon White for the delivery to him of 1200 barrels more. The transportation of what he already had on hand would be a performance of his contract for the second year, and White’s permitting him to do it would be equivalent to an actual delivery by him of the same quantity in the second year. And the same result would have followed the like state of things at the end of the second year.

And so if Toncray had wilfully failed to transport the salt received by him for the first or the second year, he would be equally bound to transport it in the second or third year; and could not withhold it, and at the same time-call upon White to supply what he had already in his own hands.

The construction of the contract, in this regard, contended for by Toncray. would be unreasonable and unjust ; and would have enabled him to defeat the whole purpose of his employer in the agreement for transportation, which was the annual supply of the contemplated markets. It would have put it in his power to defer the transportation of any part of the salt until near the end of the third year, and then flood the markets with the whole of it at once. And it would have made his interests as carrier paramount to those of his employer.

In asserting a breach of the contract by White, whether by refusing to pay for transportation, or by refusing to permit transportation, Toncray must confine himself to a single year, or declare distributively for the several years: otherwise, as may be inferred from what has been already said, there must be inevitable difficulty in ascertaining the rights and obligations of the parties by pleading, and in making up the proper issues of fact. Indeed, it is manifest that much confusion and perplexity have been introduced into the cause, by the mode of declaring adopted by the appellee; who has sought to treat the contract as entire, so far as regards his own obligations; but distributive, so far as regards the obligations of White.

Some obscurity seems also to have been introduced into the cause, by the idea on the part of the appellee, that White was bound to do certain acts preliminary to the transportation of the salt by Toncray ; for example, that White ought to have given notice to Toncray to come and do the transportation, and ought also to have given him notice at what places the salt should be landed, and to what consignees it should be delivered. But this is so far from being correct, that it is obvious in regard to this action by Toncray, (however it might be in an action or plea by White,) the first duty was to be performed by Toncray. It was his business to attend at Saltville, at such times as suited his convenience, to receive the salt from time to time, as he was ready, and commence its transportation ; and he ought to have required not only the delivery of the salt, but the instructions requisite as to its points of transportation, so far as the same were nndesignated by the contract; and if he rashly commenced the transportation without requiring such instructions, any loss to him thereby occasioned is attributable to his own fault.

Some difficulty has also been occasioned by certain averments in the declaration, intended to affect by parol the terms of the contract under seal, in regard to limits . . 0 and relative prices of transportation, and a point of debarkation, by means of a new verbal agreement between the parties, enuring to the advantage of the appellee, and of mandatory directions to him by White, to which he yielded, operating to his prejudice. But these are matters which cannot be properly introduced into this action, for the recovery or enhancement of damages in favour of the appellee; and any redress to which he may be entitled by reason thereof must be sought by other remedies.

The principles above declared will serve to indicate objections to a greater or less extent to every count of the appellee’s declaration, and the correctness of the Circuit Court’s decision sustaining the appellant’s demurrer to the fourth count, and its incorrectness in overruling her demurrers to the other four counts. And these views render it inexpedient to notice points ruled by the Circuit Court in rejecting pleas, admitting evidence, and refusing instructions; for as the cause must be sent back for a new trial and new pleadings, we cannot foresee how far those points may again arise in the new state of the pleadings and evidence. To this remark an exception exists in relation to the question as to the extent of the credit to which the appellant is entitled, on account of the loss of salt in the river, in the course of its transportation by the appellee, occasioned by the “staving” or sinking of boats; a question which will doubtless be presented at the new trial, whatever may be the state of the pleadings. On this point therefore we express the opinion, that the appellant can be entitled to no compensation for such loss, beyond the stipulated damages provided for by the contract in such a case. There is a general provision in the agreement, that Toncray should be responsible for salt received for transportation, and not delivered by him at a prescribed rate; which general provision extended his liability beyond that of common carriers: and the loss of salt in the river, by staving or sinking, was intended by the parties to be an exception to that general provision as to the rate, and fixed the liability of Toncray for such loss at a lower rate, and was designed to exclude any question of liability which might otherwise arise in regard to it, out of the general law of carriers. It waives, as well as the general provision, all questions founded upon care or negligence; and provides the simple rule of actual loss by staving or sinking, probably because Toncray had an interest, as well as White, in the safe transportation of any salt which might be so lost.

Judgment reversed with costs, verdict set aside, demurrers to declaration sustained, and cause remanded for a new trial, with leave to the parties to plead de novo.  