
    Morrison vs. Galloway.
    In an action o£ covt nam. brought on the nth of hebiraiy 1799, upon an apieeiix-nr exe*> exited on the N th. oí Mm eh 1790, between M (ihe plaintiff.) and G (the defendant.) stipulating ittier alia that a complete merchant mil should be bui it by M oi materials to be pvov ided bv G, who va» also to provide a framed or hewed Jogged dwelling-house at the mill for M to reside m, ami M agreed that he wonki lake up Ins vesidenc*- :it the mill in the dw elnng heme, tn d would an as the. manager and sopeunrendant of the mill, which was te be woikf d for the joint hem fit of M mid G, in equal parts, M to receive one half of the in it profits, and G the other half 7 he copartnership to lomnunee as coon as the mill should be ready to do woik„ and continué for ten yonis. That a regular set of hooks should he kept, which should contain all the transactions of the copartnership, and a settle» anent should ho effected at the end oi every year. 7 he firewood should be furnished from the faun. <»n which G resided, for the use of two fire places in ihe null and dwelling house; at the equal cost of the parlies for out ting and hauling it to the houses and 12 acres of land, im lading two acres of bottom hind most convenient to M, to be put under good and surtieioet ft nee for hia use. 7 lie dtclmation averred, that the mili was com pU led on th c 21st oi .Tunc 3798, and that M pet burned, &c i be hunch asigfied was, that G did, on the 3lst ut January 17(9, ioulhiy eject M from the mill and píomises and still keeps hnn out That G dui not provide a framed or hewed logged dwelling-house at the mill for M to reside m That G, on tlu dry and year last aforesaid, nfiei the mill was complete and put into complete motion, did prevent M fiom receiving one had of the nett profits o1 the mill, hut Quit G did, contrary to the consent o1 TNI, receive the whole of the piofits from tlu day apd y uic last aforesaid,jriitii the bringing of thivaetion, ami hath refused to pay any pan thereof to M Nor did G fi rmah M with 22 núes oí kind,including two acies ot bottom ltti.d most convenient to M, under good and sufficient ienoe for M’s me. The witness to the a p,i cement was offered by G to pi ove svlmt took place between G and M previous to and at the time of the agicement,as to their intention, and meaning m the agreement; a*so another witness, who proved that when he was at work upon the dam for the mill, he received orders fiom G to build the dweJIing-hou >e for At, but that M told him to continue to work at the dam, and not to mind the house, as he could nu ke a shift with the counting room in the mil!, which ho occupied, and declared that uanswevu] his purposes very well, ■< nd that theie was no occasion to build the dwelling house until it suited the convenience uS G. Held, that the construction of thu agi cement is a mattei of law to be detei mined by the court That parol evi«i deuce may be admitted to explain doubtful parts; but no evidence can be admitted to prove, the agreement different, orto pi ove any additional aguenient nut included m or touched upon in the agreement That the evidence ofiertu did not dis. o ve or extuigtiish the contract, or bar the plaintiff’a «aire of action against the defendant for the bieaeh m not bunding the house; that it, was only a. consent to a temporary suspension of the building oi the dv.ehing-hotre. and is-oniy pioper m mitigation of damages
    
      Held also, that at the tint'* of bunging the action, the plaintiff had a cause of action, being deprived of the benefits under the contr«.ct
    
      Huid aU«>, that the covenant on the part of the defendant, that the plaintiff should receive one half of the profit» of the mil!, is an indepi mlent eounar.t; and that it was not incumbent on the jolaintiff, to entitle himself to a lecovery, to prove a compliance with or fulfilment, of every stipulation m the covenanr on lus part to be pet formed
    
      Held also, that it was not necessary for the plaintiff, iu order to support his action, to prove that ha took up his lesidenco at tin mill, and superinu nded the same as miller, and devo.ed his time and atlemion to the mill, in such manner as is mual fin- men under wages todo paituular work; that ha kept a regu ar sti of books, in which were eontaimd all the transactions of ihe copartnership, ami that ho effected a sett]» mem of the pnmuiTip accounts at the end of tlu year 1798, or that he was proven ted ironi doing so by the d< femi.uit 7 hat it was only m ce»sai y lor the plaintiff' to pi ove tii.il, he did enter upon the management and superintendance of the mill according to the covenant, and diet w erk mid. manage the game
    
      Held also, thatior withholding from the plaintiff the one half of the profits o* the mill, he could only ; ecovtr therefor irom the time when such withholding oi the profits first commenced down to the time when the action was brought
    
      Held also, that the plaintiff might recover damages for one half of the nett piofits of the mill down. To the time of bunging the anion only; and damages for the ejecting and tnriin g him outot 'hopos* session of oí tfio nub,‘and for all advantages ai d boecfUg which might attend or iesuit from tlu pov» fcouion thereof; during (ho tmexpiied term of tw> years* not comprehended within the nett profits v>jf the mill: and that an action or actions mgy be bi ought by the plaintiff against the. di fondant. Jor one half of the nett profit*, winch might have been mane, or may be made from woihmg the min under the contract,from the 11th of hebtumy 1799,utiuug the continuance oi the paruu-tship under the same
    
      Held also, that tips beinr an action founded on contract, the plaintiff had on y a right to recover damages ihr the actual loss, injuit and inconvenience, by him sustained by ot-easiop o. tins breeches of eovemmi assignee] by him, (exclusive of his part’ of the pioffts of the mil!,) according to the wh.de *>f the circumstances existing m the case, without ‘reference to tlu force, if any, with which the plaintiff was dúpossessed . , , ...... ~ , , .
    . , , ~ , , . . Held a'so, that it was no ground to arrest the judgment upon the verdict, (which was for the plain-toff,) because tin; íltcluíüffon stated, ^s ti bitach oil the’(3ai’t (if the detcnaani, w; not enclosing the v£ acres of rand* &<j* •
    Appeal from Washington county court. This whs an action of covenant, brought by the appellant iu the late general court on the 11th of February ¡799, upmi the following articles of agreement entered into between liim and the defendant, (now appellee.) “Articles of agreement made this 18 th odd arch 1796, between William Morrison of,'5 &c. “and Benjamín Galle,jay of,” &c. “Whereas it is the intention of the said Galloway that a complete merchant mill shall be erected at a seat on Cheto’s Farm, in Washington county, and said Morrison is willing to execute the said building. Be it remembered, that the parties aforesaid have agreed, and by these presents do agree, each with the other, that they will respectively do and perform the following engagement,, agreeable to the plain intent and meaning- thereof; that is to say, it is agreed on the part of said Galloway, that he will provide all the necessary materials for erecting and finishing said mill, and deliver them to said Morrison, at said mill-seat, in good order, and will also provide for said Morrison, and his workmen, meat,, drink, washing and lodging, during- the time of building said mi!I;the rafters, joists, studs and braces, to be sawed; the mill-house to be 40 feet by 45 feet, or 45 feet square, as said Morrison shall determine; to be two stories high, and an hipped roof; the foundation tobe stone work; the superstructure of the mill to be framed work, and weather boarded and shingled; a counting room to be in the mill; and said Galloway to find a proper desk for the- same: said Galloway to provide a framed or hewed.logged dwelling-house, 24 by 20 feet, with a brick chimney, at said mill, for said Morrison to reside in; said Galloway further agrees to furnish, in due time, all articles necessary towards putting said mill in complete motion to do merchant and country work, as said Morrison may call on him for them, said Morrison taking care always to give said Galloivay sufficient notice to enable him to provide the same.;, said Morrison agrees, on his part, that he will hew the timber, frame the mill-house as before mentioned, weather board it, and shingle the roof; make doors, windows and stairs; make two. water wheels; start three pair of burr stones,four bolting cloths, rolling screen and fan, and make hoisting geers within and without, and boulting chest, item. Said Jhon.ison engages to complete the above work, after the proper foundation walls are built, for the sum of £450 current money, item. It is agreed on the part of said Morrison, that be will take up his residence at said mill, in the dwelling-house aforesaid, and will act as the manager and superin tend ant of said mill, which is to be worked for the joint benefit and advantage ot said Morris, son and Galloway, in equal parts; that is to say, said Morrison to receive one half of the nett profits, and said Galloway the other half; said Morrison to engage the necessary persons to be employed in working said mill, and to remove them whenever he thinks proper;, the money capital for the use of said copartnership to be provided in equal proportions by said parties, it is further agreed, that this copartnership shall commence as soon as the mill shall be ready to do work, and shall continue between the parties aforesaid for the space of ten years; but it is understood, that in case of the death of said Morrison before the end ■of said ten years, then this copartnership is to be dissolved immediately after such event shall take place. It is agreed that a regular set of books shall be kept, which shall contain all the transactions of the copartnership, and a settlement ot the partnership accounts shall be effected at-the expiration of every year. It is understood between, said parties, that said Morrison shall never claim any wages for his management and superintendance o¿ said mill, and the said business; nor shall said Galloway ever charge said Morrison with any rent for the use of the said mill; but that the one shall always be considered as a full satisfaction for the other; the firewood shall be furnished from the farm on which said Galloway now resides, for the use of two fire places in said mill and dwelling house, at the equal cost of the said parties for cutting and hauling it to said bouses; and 10 acres of laud, including two acres of bottom land most convenient to said Morrison, to be put under good and sufficient fence for his use. The hogs that may be supported by the sweepings and offals of said mill shall be considered as the joiut property of the parties aforesaid; and the said Gallo-way is to employ, at his expense, a person to get the shingles to cover said mill and dwelling-house. la testimony whereof the parties aforesaid have hereto set (heir hands, and affixed their seals, the day — .Said Galloway agrees to pay to said Morrison such money as he shall vequire during the time he is engaged in the building of said mill, and the balance of his account at the time of completing the same.” It was signed and sealed ay lire parties. The declaration alleged, that although the plaintiff had well and truly done every thing ou his part to be done, according to the form and effect of the covenant, and did well and faithfully complete the mill on the 21st day of June 17"98; and although he was always willing and ready to take Op his residence at the mill, iu th'e dwelling house mentioned in the articles of agreement, and offered so todo; and although he was ready and willing at ail times to act as the^manager and superintendant of the mill, and offered so to do; and he was always ready and willing to keep a set of books to contain the transactions of the co-partnership, and that a settlement of the partnership ac-< counts should be effected at the expiration of each year — • Yet the defendant did afterwards to wit, on the.Slst day of January 1799, at, &c. forcibly, and against the consent of the plaintiff, eject and turn him from the' mill and premises, and always hitherto hath, and still doth, keep him from the same; nor did the defendant provide a framed or hewed logged dwelling house, 24 by 20 feet, with a brick chimney, at the mill, for the plaintiff to reside in, according to the covenant; but the defendant afterwards, &c. after the mill was-complete, and put into complete motion, did prevent the plaintiff from receiving one half of the nett profits of the mill; but the defendant did, contrary to the consent of the plaintiff, receive the whole profits for a long space of time, to wit, from,&c. until the day of the impetration of the original writ in this cause, and hath refused to pay or deliver any parí to the plaintiff, although often requested so to' do. And the plaintiff in fact avers, that the one half of the nett profits of the mill, for the time aforesaid, was and 1 still is of the value of ¿62000 current money, to wit, &c. of . which .the defendant had notice. Nor did the defendant furnish the plaintiff with 12 acres of larfil, including two acres of bottom land most convenient to the plaintiff, under good and sufficient fence, for the plaintiff’s use, but wholly refused, and still doth refuse, to furnish the land, or any part thereof, as by the articles of agreement he was bound to do; and so the plaintiff saith that the defendant hath not performed, fulfilled, kept and observed, the covenant be-' tween them made, but has broken the same;-and hath hitherto wholly refused, and still doth refuse, to perforin it to the plaintiff; wherefore the plaintiff saith he is injured, and hath sustained damage to the value of ¿65000 current money, &c. . It was agreed between the counsel, to enter a general plea or performance of all the covenants, and take issue thereon, with leave to the defendant to give any .thing in evidence which he might have pleaded in bar; and that all errors should be released except, substantial errors tilth e declaration.
    1. At the trial in the general court at May term 1803, Dennis Nanis, a witness, proved, that in the summer 1797 he received orders from the defendant to build the dwel« ling-house in the declaration mentioned, and to take the slaves of the defendant to get and prepare the logs for that purpose, and to put them up. This direction was communicated to him by letter, the defendant being then absent from home at Bath, in Virginia. That he, the witness, was at that time at work with the slaves of the defendant ■upon the dam for the mill. That the witness being about to execute the above orders of the defendant, told tins plaintiff that he was about to take away the hands of the defendant from the dam; the plaintiff asked for what, lie told him to build his house; the plaintiff told him to continue to woik atibe dam, and not to mind the house, that he, the plaintiff, could make a shift with the counting room finished in the mill; that in consequence of this request of the plaintiff, he at that time refrained from building the house, and continued working upon the dam until the cold weather prevented him: that he began again to work upon it in the spring 1798, and did not finish it until some short time before the mill was completed, which was on the 21st of June 1798. That the witness was the overseer of the defendant for the years 1797, 1798, 17D9. That he never after received any instructions from the defendant to . get the logs for the house, and that none were ever got. That at this time the plaintiff was a single man, and that the room in the mill was a large comfortable room, with a fire-place in it. The defendant then proved, that after the mill was completed, the plaintiff occupied the room in the mill, and in conversation with Peregrine Mtzhugh, declared to him that the room answered his purposes very well, and that there was no occasion to build the dwelling-house until it suited the convenience of the defendant. The plaintiff offered no evidence to the jury that he ever called upon the defendant to build the dwelling-house, or requested it to be done. That on the 31st of January 1799, the defendant dispossessed the plaintiff of the mill, and kept him out ever after. On these facts the defendant prayed the court to direct the jury, that the plaintiff had no cause of action against him for the alleged breach of covenant in. not building the dwelling-house.
    
      1Mason and /, Buchanan, for the Defendant,
    cited Jones vs. Barkley, 2 Dough 684, 687; and 1 Roll. Ab. 453, N. Pl. 5.
    
    
      Martin,. (Attorney-General,) for the Plaintiff,
    cited Littier vs. Holland, 3 T. R. 590.
    Chase, Ch. J. The construction of the agreement is a matter of law to be determined by the court* Evidence may be admitted to explain doubtful parts; but ho evidence can be admitted to prove the agreement different, or to prove any additional agreement not included in, or touch» ed Upon in the agreement.
    The coilrt cannot give the direction prayed by the defendant. They are of opinion; that the evidence offered did not dissolve or extinguish the-contract in this case, nor bar the plaintiff’s caUse or right of action, against the defendant, for the breach in not building the house) that it was only a consent to a temporary suspension of the building of the dwelling-house, and is only proper in mitigation of damages. The defendant excepted*
    2. It appeared in evidence, that the mill was completed on the 2l'st of June 1798, and continued in the possession, and tinder the direction of the plaintiff exclusively, until the 31st of January 1799. That on this last day the defendant dispossessed the plaintiff, ahd from that time only, withheld from him any share of the profits. That on the 11th of February 1799, the plaintiff instituted this his suit against the defendant. The defendant theft moved the court to direct the jury, that when this suit was instituted the plaintiff had no cause of action against the defendant for withholding the profits of the mill.
    Chase, Ch. J. At the time of bringing the suit, the plaimtiff had a causé of action, being deprived of the benefits Under the contract. The court cannot give the direction prayedb The defendafit excepted.
    3. The defendant then moved the court to direct .the jury, that the covenant on the part of the defendant, that the plaintiff should receive one half of the profits of the mill, is dependent on the fcovenant, on the part of the plaintiff, to take Up his residence at the mill’, to superintend its management and direction for the joint benefit aftd advantage of both parties, to commence a copartnership as soon a3 the mill should be put in motion, and to keep a regular sét of books containing all the transactions of the partnership concern; and that the plaintiff, to entitle himself to a recovery of one half of the profits of the mill, must prove that he performed his covenant in all its parts, or that he 1 , ,. . * was prevented irmn doing; so by the ueiendant# r ° *
    
    
      J. Buchanan and Warfield, for the Defendant, cited Jones vs. Barkley, Dough 684, 690, Esp. Big. 284, 285; and Glazebrook vs. Woodrow, 8 T. R. 366.
    Chase, Ch. J. The court are of opinion, that the cove» ¡¡¡ant in this case is an independent covenant, and that it is not incumbent on the plaintiff, to entitle himself to a recovery, to prove a compliance with, or fulfilment of, every stipulation in the coveuant on his part to be performed, The court therefore refuse to give the direction prayed,. The defendant excepted.
    
      4. Upon the rejection of the testimony of the subscribing witness to the agreement as to the ideas of the parties respecting the agreement, and upon the statement in the second bill of exceptions, the defendant prayed the court for their opinion and direction to the jury, that by the true construction of the articles of agreement, the plaintiff was bound to take up his residence at the mill, and superintend the same as miller, and to devote his time and attention to the mill, in such manner as is usual for men under wages to do particular work. That the plaintiff was bound to keep, and prove that he kept, a regular set of books, in which should be contained all the transactions of the copartnership, and that he was bound to effect a settlement of the partnership accounts at the expiration of the year If98; and that unless he does show that he has done this,, or that lus was prevented from doing so by the defendant, he cannot sustain an action against the defendant upon this covenant, for dispossessing him of the mill on the 31st of January 3 7S9, and depriving him of the share of ifa profits from that time.
    GiiAse, Ch. J. The court c?mioi: give the direetjoa prayed. They are of opinion, that it is not necessary for thn plaintiff to prove any of the facts above specified, to sup. port this action, except that he did enter upon the inaBUgcmeui and superintendence of the. mill, according to the-covenant, and did work $t\d manage, the s^ne. dy’ if<pjpdsBt excepted.
    
      
      5. The defendant then prayed the court for their direc« tion to the jury, that if they should be of opinion that the plaintiff was entitled to recover from the defendant, for his withholding from the plaintiff the one half of the profits of the mill, that he could only recover therefor from the time when such withholding of the'profits first commenced, down to the time when this suit was brought
    The Court gave the direction accordingly.
    6. The defendant then prayed the opinion of the court, and their direction to the jury, that for the breach stated by the plaintiff, in turning him out of the mill on the 31st of January 1799, and keeping him out thereafter, he can only recover damages for the actual deprivation of his possession, and the continuance of that deprivation down to the bringing of the suit, and not further; and that for all the subsequent damages which the plaintiff hath sustained for being deprived of the possession and profits of the mill, subsequent to the bringing of this suit, he may have a new action against the defendant, if in doing so the defendant has acted contrary to law.
    
      Mason and Warfield, for the Defendant,
    cited 3 Blk. Com. 157; and 1 Bac. Ab. tit Covenant, 542, 546.
    
      Marlin, (Attorney General,) and SlxaajJ, for the Plaintiff,
    cited Nurse vs. Barns, Sir T. Raym. 77.
    Chase, Ch. J. The court are of opinion, that the plaintiff may recover damages for one half of the nett profits of the mill down to the time of instituting this suit only; and damages for the ejecting and turning the plaintiff out of the possession of the prill, and for all advantages and benefits, which might attend or result from the possession of the same, during the unexpired term of ten years, not comprehended within the nett profits of the mill; and that an action or actions may be brought by the plain tiff against the defendant, for one half of the nett profits which might have been made, or may be made, from working the mill under the contract, from the 11th of February 1799, during the continuance of the partnership under the same. The plaintiff and defendant both excepted to this opinion of the court.
    
      y, The defeudant then prayed -the court to direct the jury, that in this case the plaintiff had only a right to recover damages for the actual loss, injury and inconvenience, by him sustained by occasion oí ihe breaches of covenant assigned by him; and that this being an action sounding in contract, it was not a case in which it was proper for the jury to give vindictive damages.
    Chase, Ch. J. The court are of opinion, that this being an action founded on contract, the plaintiff has only a rigid to recover damages for the actual loss, injury and inconvenience, by him sustained by occasion oí the breaches of covenant assigned by hiui, (exclusive of his part of the profits of the mill,} according to the whole of the circumstances existing iu the case, as they appear in evidence to the jury, without reference to the force, if any, with which the plaintiff was dispossessed. The plain tin* excepted.
    
      Verdict for the Plaintiff,
    and damages assessed to J51G8 15 0 current money. There was a motion in arrest of judgment, and the following reason was assigned: Because the plaintifi hath stated in the declaration, as a breach of die covenant, on the part of the defendant, that he did not enclose twelve acres of land most convenient to the mill, in the declaration mentioned, two acres whereof was bottom land, and cause the same to be put under a good and sufficient fence for the exclusive use of the plaintiff; tipon which pretended breach of covenant the jury have assessed damages to the plaintiff, when in fact it was ilia duty', by the articles of agreement, of him the plaintiff, end not of the defendant, to have enclosed said twelve acres of ground at the joint expense of the plaintiff end defendant.
    
      Curia adv. vuli.
    
    Upon the abolition of the General Court, lids case was transferred to the county' court of T^ashing/aii, in which court, at October term 1806, judgment on the verdict was arrested by Shrivcr, A. J. and lite plaintiff appealed Us this court
    The cause was argued before Chase, Ch. J. Nicholson, Gantt, and Emile, .1.
    
      Shaajf, for the Appellant.
    This casa does not conic up 0» any of the bills of exception taken at the trial of the cause, Tfie sole question for this court is, whether the county court were right iii arresting judgment on the verdict. The breaches in the declaration, which have been made the ground for the motion in arrest of judgment, as slated in the reasons filed, are, that 4Hhe defendant did not enclose twelve acres of land most convenient to the mill, in the declaration mentioned, two acres whereof was bottom land, and cause the same to be put under good and sufficient fence for the exclusive use of the plaintiff,” Now the declaration does not allege the breach an stated in the reasons. The breach, as laid in the declaration, is ‘¡‘nor did the defendant furnish the plaintiff with 32 acres of land, including two acres of bottom land, most convenient to th,e plaintiff^ under good and sufficient fence, for the plaintiff’s use, but wholly refused,” &c. in the words uf the agreement. The meaning of which is, that Gallo-was to furnish the land enclosed, and that it was not to be at the joint expense of the parties. The preceding clause in the agreement saying, that the firewood, &c„ should be at the equal cost of the parties, did not make it a covenant that the 12 acres should be enclosed at the joint expense. They are separate covenants. It is not usual for a man to covenant to furnish himself; and as this was for the benefit of Morrison, it must be Galloway’s covenant. The costs of cutting the firewood, &c, has nothing to do. with what follows respecting the land to be enclosed. After verdict, the court are to infer from the expressions in the declaration, that Gallon:ny did not, according to, the agreement, furnish the land,, and enclose it as by the covenant he was bound to do, and that the jury found that he did not furnish and enclose according to the covenant. The declaration does not state at whose expense the enclosing was to be. It was to be done for the use of Morrison* The firewood was to be furnished at the equal expense of the parties,
    If the judgment is reversed, by the act of 1800, eh. <59, this co.urt are to give such judgment as the court below ought to, have given. The judgment here has been arrestv cd, and if the judgment of arrest is reversed, unless the. court give judgment under this act, tfie. appellant has no, jem.edy but anew action,
    
      T. Buchanan, for the Appellee,
    The only question a? to the, construction of the agreement jss whether the land s',as tobe Enclosed at tito joint expehsc of the parlies? Tlie declaration goes upon the ground that the enclosure was to be made solely at Gullou'uifs expense, when the agreement does not ¡so provide, but when it may bs inferred that it was to be at the joint expense oí both, and was to be taken as a mutual covenant. In the agreement, where any act was to be done at thé expense of either of the parties, it is so stated. Hence, it not being otherwise pro* vided, the inference is, that the enclosing tlie 12 acres, &c» was to be at the joint expense of both. The firewood was to be furnished at the joint expense, and the land to bá enclosed at the like expensa. There is no reason why die expense in the one case should not be borne as in the «flier. In this case the appellee took a number of bills of exceptions at the trial. He did not let the judgment go .against him on the verdict, and rely on the errors in the opinions given in the exceptions, but moved to arrest the judgment, which was done, and the cause is now in tills court on the plaintiff*’» appeal, tf the judgment is revests-• ed, and such a judgment given as the court below ought to have entered, the appellee will be precluded from the be* Belit of his bills of exceptions.
    
      Martin, in reply,
    was stopped by the court.
   JUBGMHT REVERSED, AND JHDUMEKt' ÍOR THE A3PPE1-BANT OX TUB Y1SÍIIK0T, &C.  