
    Lewis v. Weldon and Others.
    December, 1824.
    Contracts — Interpretation—A contract is made for the delivery of a crop of wheat at the barn of the farmer, between certain-days; the farmer is not bound to have the whole ready at onetime; but the other party is bound to use reasonable industry in receiving- and taking: it away in reasonable parcels.
    Dependent Covenants — When Covenant May Be Maintained Thereon. — In dependent covenants, when the plaintiff has performed apart, for which he can have no other remedy than by an action on the covenant, an action may be maintained in the same manner, as if the covenants were independent.
    Same — What Constitute. — Where a contract is made to deliver a crop of wheat at the barn of the seller, before a certain day, and the purchaser is to pay for it some months after delivery, the covenants are dependent.
    Lewis brought an action of covenant in the Superior Court of Frederick county, (afterwards removed to the Superior Court of Berkeley county,) against Weldon, Eben Taylor, Griffin Taylor and Abner Osburne, defendants. The declaration sets forth the following agreement, dated the 13th day of January, 1813, and sealed *with the seals of the defendants; that the said Lewis, the plaintiff, had agreed to sell to the said Weldon, &c. (together with a certain Bushrod Taylor,) all his, (the said Lewis’s) crop of wheat in the county of Frederick, at the price of 31 50 cts. per bushel, or every 00 lbs. weight of merchantable wheat, at the barn of the said Lewis, the whole to be delivered between the date of the said article, and the 1st day of March then next ensuing; and the said defendants covenanted with the plaintiff to pay him at the rate above mentioned, for every bushel or sixty pounds of wheat, which should be so delivered, within six months from the date of the said agreement. The plaintiff avers, that he delivered to the aforesaid Weldon, the whole crop of wheat aforesaid, to wit; 3484 bushels and 15 pounds, at his barn, after the date of the said articles; whereof, he delivered 438(4 bushels, before the 1st day of March then next ensuing, and was always ready to deliver the residue, before the 1st day of March, at his barn, as aforesaid; but neither the said Weldon, nor any person on his behalf, did attend at Ihe barn aforesaid, to receive the same, until after the said 1st day of March; after which date, and before the 39th day of June, 1813, he delivered the residue. But the said defendants did not pay to the plaintiff for the said wheat, at the rate of $1 50 cts. per bushel, so delivered, within six months from the date of the said articles, and so have broken their covenant, &c. to the damage of the plaintiff, dollars.
    The defendants pleaded covenants performed, and issue was joined. Eben and Griffin Taylor, afterwards pleaded severally, that the supposed article of agreement was made by them, the said Eben and Griffin, and delivered by them to Weldon as an escrow to be by him delivered to the said Lewis, only on condition, that all the persons named in the said writing should sign, seal and deliver it, as their act and deed; and that the said writing never was signed, sealed and delivered by Bushrod Taylor, one of the persons named in the said writing; whereby, the said *writing was, and is wholly annulled and vacated, &c. These pleas were sworn to; and the plaintiff joined issue.
    Afterwards, Eben Taylor craved oyer of the agreement, and filed the two following pleas: 1. That the said Lewis was not always ready to deliver the residue of the crop of wheat, to wit: the quantity of 30553d bushels, in the declaration mentioned as the residue, before the 1st day of March, 1813, at his barn aforesaid, &c. 3. That the plaintiff did not deliver, before the 1st day of March, 1813, all his crop of wheat made in Frederick county.
    The plaintiff demurred to the second plea, and assigned the following causes' 1. That the said plea is no bar to any part of the action. 3. That it is no bar to the whole. 3. That it is insufficient, and wants form.
    The Court gave judgment on the demurrer, that the plea was insufficient, inasmuch, as it neither traverses the delivery of the said 438(4 bushels of wheat, nor admits the plaintiff’s action for so much; and the Court further decided, that there was error in the plaintiff’s declaration in this, that it is not averred, that the plaintiff gave to the defendants or either of them, notice that he was ready to deliver the residue of the said wheat, before the said 1st day of March. Whereupon, by consent of parties, the proceedings in the cause were set aside back to the writ, and the plaintiff had leave to plead de novo.
    The plaintiff filed an amended declaration, setting forth the agreement as in the first declaration, and averring that he did deliver, before the 1st day of March, 1813, 438(4 bushels of wheat, at the plaintiff’s barn; that he was ready to deliver 500 bushels more, before the said 1st day of March, “the same being part of the said Lewis’s crop of wheat in Frederick county, whereof the said defendants had notice, to wit: on the 38th of January, 1813;” but neither the defendants nor any person on their behalf, did attend at the barn aforesaid, to receive and remove the same, until after the said 1st day of March; whereby, the plaintiff was hindered and obstructed in getting out, and *having ready for delivery, at the barn aforesaid, before the said 1st day of March, 1813, another number of bushels of merchantable wheat, viz: 1555 bushels and 45 pounds, being part of the said crop. The plaintiff averred, that after the said lrst day of March, 1813, and before the 39th of June, 1813, he did deliver to the defendants, and they received the said two last named quantities of wheat, amounting, together with the said 438(4 bushels delivered before the 1st day of March, 1813, to 3484 bushels and 15 pounds, being of the said crop of the said Lewis. But, neither the defendants nor either of them, have paid to the said Lewis, at the rate of $1 50 cts. per bushel, of the 438(4 bushels delivered before the 1st day of March, 1813, or for the residue of 3484(4 bushels delivered as aforesaid, or for any part thereof, within six months from the date of the said agreement, or at any time since, &c.
    The defendants filed a demurrer to this amended declaration, and set forth, as causes of demurrer: 1. That the declaration is blank as to the quantity of wheat ready to be delivered before the 1st day of March, 1813, and also the quantity which would have been delivered, but for the. obstruction of the defendants. 3. That there is no averment in the said declaration, that the plaintiff did deliver the whole of his crop of wheat, made in Frederick county, before the 1st of March, 1813. 3. That there is no averment that the plaintiff did deliver, or was ready to deliver at his barn, or was hindered and obstructed from delivering all his crop of wheat, in Frederick county, before the 1st of March, 1813; but the declaration avers the delivery of 438(4 bushels, before the 1st day of March, 1813, his readiness to deliver another part of the said crop, before that time, and notice to Weldon thereof; and that he was hindered and obstructed in delivering another part thereof; without averring that these different parts constituted the whole crop in Frederick county. 4. That the declaration avers the delivery of 2484 bushels 15 pounds, after the 1st of March, 1813, which is out of the contract. *5. That the averment, that the plaintiff was hindered and obstructed in delivering a portion of the crop, before the 1st of March, 1813, by the defendants’ not taking away what was ready, is not a performance or equivalent thereto, of his contract. '
    The Court gave judgment for the defendants, on the demurrer; and the plaintiff appealed to this Court.
    Johnson, for the appellant.
    The demurrer must be considered a general one; because, although there are special causes assigned, it was filed after the time within which a special demurrer could be allowed. The appellee, therefore, can take no exceptions to the declaration which do not go to the foundation of the action. This remark disposes at once of many of the ■ objections stated in the demurrer, which are merely exceptions to the form of pleading.
    The stipulation of the appellant, that his wheat should be delivered before the 1st of March, was not a condition precedent. Jf the plaintiff failed to deliver the wheat, the defendant would have a right to sue on the covenant. The covenants are independent. But, if they are dependent, it is alledged in the declaration, that a part of the wheat was delivered before the 1st of March; that the plaintiff was ready to. deliver another, part before the 1st of March, but was hindered by the defendant; and that another part was delivered and accepted after the 1st of March. A.ll these allegations are admitted by the demurrer; and form a complete title to a recovery. The acceptance of the wheat will be presumed to be an acceptance under the contract.
    Leigh, for the appellee.
    This is a dependent covenant, because the payment was to be made six months after the 1st of January, and *the wheat was to be delivered on or before the 1st day of March. This always makes the first act to be done, a condition precedent. Pordage v. Cole, 1 Saund. 320, note 4. Boswell v. Simonds, in this Court (not reported.)
    In declaring on a dependent covenant, the rule is, that the plaintiff must alledge full performance on his part, or that he was prevented by the defendant from performing, and that he has done all that was incumbent on him. Kingston v. Preston, cited in Jones v- Barclay, 2' Doug. 689. Worseley v. Wood, 6 Term. Rep. 610. Glazebrook v. Woodson, 8 Term. Rep. 366. The utmost strictness will be required, in pleading an excuse for nonperformance. Lancashire v. Killingworth, Ld. Raymond, 686.
    This declaration is deficient in all the requisite precision. It does not aver, that 428J4 bushels of wheat were the whole crop of Lewis in the county of Frederick. The ■ expression is, “being of the crop.” There is no averment, that the wheat delivered, was made in the county of Frederick. Yet the contract related only to wheat made there. It is not averred, that the wheat was delivered to the defendants, but only “to the said James” (Weldon.) The plaintiff does not aver that he was at his barn, on the 1st of March, until sunset, to deliver the wheat; but this was necessary, as the defendant had, until the last moment of time, to perform his contract.
    It is true, the defendants are bound to pay for the wheat which was accepted, but not under the covenant; as it is not averred, that the last parcel of wheat was accepted under the contract.
    Johnson in reply,
    relied on the case of Pordage v. Cole, 1 Saund. 320, b. note 4, as decisive of the present question. That case establishes that, even in dependent covenants, where one party has performed only a part of what he was bound to perform, he may maintain his action on the covenant; the other party having his redress by a like action. Here it is alledged and admitted, that *the plaintiff did deliver 428Já bushels, before the 1st of March; and so entitled himself to his action, under the principle above-mentioned. The same consideration affords an answer to the exceptions to the forms of allegations in the declaration. Those allegations may be insufficient, or even omitted altogether, and the declaration would be good, as a part has been averred with sufficient correctness.
    December 2.
    
      
      Contracts — Interpretation.—See monographic note on “Contracts” appended to Enders v. Board of Public Works, 1 Gratt. 364.
    
    
      
      Dependent Covenants — When Covenant May Be Maintained Thereon. — See principal case cited with approval in Bream v. Marsh, 4 Leigh 29; Tait v. Tait, 6 Leigh 165; Roach v. Dickinsons, 9 Gratt. 163; Davisson v. Ford, 23 W. Va. 626.
      For further information on the subject, see mono-graphic note on “Covenants” appended to Todd v. Summers, 2 Gratt. 167; monographic note on “Covenant, the Action of” appended to Lee v. Cooke, 1 Wash. 306.
      The principal case is also cited in Wilson v. Bank of Mt. Pleasant, 6 Leigh 575.
    
   JUDGE COALTER,

delivered the opinion of the Court.

The declaration sets out an agreement under seal, between the plaintiff on the one part, and James Weldon, Bushrod Taylor, Eben Taylor, Griffin Taylor and Abner Osburne, of the other, whereby it was witnessed, that the plaintiff agreed to sell to the said James, &c. all his crop of wheat in the county of Frederick, at the price of $1 50 cts. per bushel, or every 60lbs. of merchantable wheat, at the barn of the plaintiff; the whole to be delivered between the date of the said agreement, (13th of January, 1813,) and the 1st of March following; and a covenant on the part of the defendants, to pay him for the said wheat, at the rate of $1 50 cts. for each bushel, or every 60lbs. of wheat, within six months from the date. The declaration avers, that the plaintiff did deliver to the said James, after the date, and before the 1st of March, 1813, 428bushels of merchantable wheat; and, although it is not averred in this part of the declaration, that this parcel was of his crop in Frederick, it is sufficiently so averred in an after part. It also avers, that the plaintiff was ready to deliver, at his barn, another parcel of 500 bushels, before the 1st of March; the same being part of his crop in Frederick, whereof the defendants had notice, viz: on the 2Sth of January, 1813; but that neither the defendants, nor any person on their behalf, did attend at the barn to receive and remove the same, until after the first day of *March, whereby the plaintiff was hindered and obstructed in getting out, and having ready for delivery, before the said 1st of March, another number of bushels, viz: 1555 bushels 45 pounds, being part of the said crop; and that after the said 1st of March, and before the 39th of June, 1813, he did deliver to the defendants, and they did receive the said two last mentioned parcels, amounting, together with the said 438bushels, to 3484 bushels and lulbs. being of the said crop of the plaintiff, the same being merchantable wheat. But, that the defendants have not paid, &c. either for the 1st parcel or for the residue, &c.

To this declaration, the defendants demur and assign five causes of demurrer.

1. The first cause is a mistake in fact, there being no such blanks in the declaration, as alledged.

2. The second is, that there is no averment that the plaintiff delivered the whole crop before the 1st of March.

3. The third is, because there is no averment that the plaintiff did deliver, or veas ready to deliver, or was hindered or obstructed from delivering all his crop of wheat, before the 1st of March, but only that he delivered a part, his readiness to deliver another part, and that he was hindered and obstructed in delivering another part; without averring that these were his whole crop.

4. The fourth, because the averment of a delivery of 3484 bushels, after the 1st of March, is out of the contract.

5. The fifth, because the averment that he was hindered and obstructed from delivering a portion of the crop, by the defendants’ not taking away what was ready, is not a performance, or equivalent thereto, of his contract.

The first enquiry which seems to present itself on this statement of the case, is, what is the true construction of the contract, as to the respective duties and obligations of the parties, in relation to the delivery and taking away of the crop? Was the plaintiff bound to have it all ready for delivery at one time; and were the defendants not bound *to receive and take away any parcel thereof, until the whole -was ready; or was the plaintiff at liberty to deliver it in reasonable parcels, from time to time; and were the defendants bound to use reasonable industry in receiving and taking away those parcels as they w'ere prepared, so as to relieve the plaintiff from the risque of keeping them, and to give him room in his barn to get out the residue?

We are of opinion, not only from the phraseology of the contract “betwmen the date and the 1st of March;” but from the nature of the crop, and the manner of getting it out, the place of delivery, and the cotemporaneous acts of the parties in delivering and receiving a parcel, the notice that another parcel was ready, and their ultimately receiving other parcels, &c. that the latter is the sound construction; and other matters pro or con, might have appeared on the trial, had the defendants thought proper to test the question in that way. If the contract had been for a delivery at the store or mills of the defendants, the plaintiff surely would have had a right to deliver in parcels, so as to obviate any risque in storing it at his own house, and to have relieved his barn, so as to go on in preparing the residue.

The plaintiff then avers a delivery of one reasonable parcel in this way, a readiness to deliver another parcel of nearly the same amount, and notice of that readiness, as early as the 28th of January, and the failure of the defendants to receive and take it away; whereby, he was hindered and obstructed, &c. from preparing the residue for delivery before the day. The defendants might have taken issue on this, and either shewn that there was no obstruction, or that they took it away in reasonable time; although the declaration avers that it was not so taken away, until after the 1st of March. They have thought-proper, however, to demur, which admits all these matters, and that the plaintiff wan thus obstructed and hindered. But it is insisted, that this hindrance was not a matter of which he could complain; as they were not bound to receive any, *unlil the whole was ready for delivery. In this, however, we third-: they are mistaken; and being bound to use due diligence in taking the parcels away, they are answerable for the obstruction, which, it is admitted, arose from their failure in not doing so. For aught that appears, the whole crop would have been prepared and delivered by the day, but for this obstruction or waiver of punctual ful-filment, on or before that time. Indeed, the failure to take away the 500 bushels, and then receiving that and the residue afterwards, would seem strongly to indicate such waiver, as well as a conviction that they were bound to receive and lake it away as prepared.

But it is said, the parcels ultimately delivered, are not averred to be the whole crop. This, however, it seems to us, would not avail the defendants. For, suppose the plaintiff was thus prevented from getting out the whole, even before the 29th of June, 1813, and that the residue of the crop was lost or destroyed by the weavil, so as not to be merchant able; who ought to bear that loss? The plaintiff would have a right also, to go for it; but he also has a right to limit his demand to the merchantable wheat actually delivered; and it is no cause of demurrer, to say that he has limited his demand to less than he had a right to go for.

As to the objection, that the declaration avers a delivery of the first parcel to James Weldon, it is not made a ground of special demurrer; and without enquiring what would be our opinions, had that been done, (especially as the contract was for a sale to James Weldon, &c. without naming the others,) or saying what the &c. meant, we think this is no ground for a general demurrer.

Another ground has been taken, which we think equally fatal to the pretensions of the defendants. That arises from the doctrines which prevailed in the case of Boon v. Eyre, and other cases cited in 1 Saund. 320, note 4, and in 2 Saund. 352, note 3, c. and there commented on. The principle to be collected from these cases, seems to be *this; that though covenants'may be dependent, as the Court is of opinion that those in this case must be considered, yet when a party has performed a part, for which he can have no other remedy but by an action on the covenant, unless the plea goes to the whole consideration, there, from the necessity of the case, and because the defendant has his remedy for the failure of the plaintiff in part, an action may be maintained in the same manner, as if'the covenants were independent.

It seems to be admitted, that in the case of Boon v. Eyre, the covenants were dependent; and if the plea had gone to the whole consideration, to wit: that the plaintiff had no title to the plantation and ne-groes, he could not have succeeded. This doctrine seems to be strengthened by the case of Campbell v. Jones, 6 Term. Rep. 570; for, although there was no averment that he had instructed the defendant to bleach, yet he had given him the use of his invention, and if he had not taught him the art as soon as he was bound to do, the defendant had his remedy. The case of Havelock v. Geddes and others, in 10 East, 555, is also a strong case to the same effect.

In the case in 8 Term. Rep. 366, Glazebrook v. Woodrow, it is true the schoolhouse was delivered into the possession of the defendant, according to the agreement; but he was also to convey on or before the 1st of August, 1797, on which day the defendant was to pay, &c. It was held, under the particular words of this contract, that the plaintiff could not recover without averring a performance in this’respect also; that such was clearly the intention of the parties; that the conveyance was the great consideration, without which the defendant was not to be forced to part with his money, &c. One Judge says, “How far the determination in Boon v. Eyre, militates against the principles I have laid down, may be a matter of doubt; but the' intention of the parties is, or is assumed to be, the governing principle in all the late decisions.” Here the party was to receive the possession in 1796, but was clearly *not to pay until he got a conveyance. This manifest intention could not be departed from. The plaintiff was to give possession, and to risque his not being able to convey. But here, if he had a title, he was not without his remedy, as he could re-gain possession by ejectment, and also recover his rents and profits.

But in our case, was it the intention that if all the wheat, except 50 bushels, was delivered before the day, and that, by some accident, that was not ready until the day after, that the defendant should not pay for what was received?

If the delivery was under the contract, and the plaintiff, not being able to deliver all, had sued on an implied assumpsit, he would have been repelled by the defence, that it was received by virtue of a contract under seal, as such express contract makes that which would otherwise be implied, cease. This, in addition to general principles, seems to be well settled in Young v. Preston, 4 Cranch, 239.

He could only raise an implied assumpsit, by alledging that the delivery of the several parcels was by mistake, and not under the contract. But this would not do, if we are correct in our construction of that contract. The plaintiff then would be without remedy, except in this action, sustainable on the principles above stated. In such case, he might go for the whole crop, or limit his demand to the quantity actually received. If that was not the whole crop, and the defendants had sustained damage for not receiving the. whole, by reason that the price had risen, &c. they had their remedy by action.

On the whole, we are of opinion to reverse the judgment, over-rule the demurrer, and send the cause back to have a writ of enquiry awarded and executed.  