
    *George Easterby vs. James Heilbron, The same vs. The same.
    In the construction of covenants, the intention of the parties must govern, where the intention can be ascertained from the instrument itself. Parol proof is not admissible to explain a deed of covenant, where there is no ambiguity.
    Before Earle, J., at Charleston, -.
    These were actions of replevin, in which the parties, pleadings, and evidence were the same. The defendant avowed for rent in arrear. Pleas, non tenuit, and no rent in arrear; to which, in the second action, was added the further plea of no rent in arrear, nisi a certain sum, which was tendered.
    
      The premises demised consisted of the lot at the northeast corner of Church and Queen streets, “ together with the three brick tenement dwelling houses thereon ; and also the brick buildings now in the progress of being erected thereon ; and all the buildings, hereditaments, and appurtenances, to the aforesaid premises belonging.” The term was for five years, commencing the 10th July, 1836. The plaintiff, among other things, covenanted to pay rent for the lot, “ with the buildings already erected thereon, at the rate of three hundred dollars per annum, payable ^quarterly, until the brick buildings on Church street, appurtenant thereto, now in the progress of being erected thereon, are completed and finished; and as soon as the said brick buildings on Church street appurtenant thereto, are completed and finished,” the said G. E. (the plaintiff) covenanted to pay the defendant, as rent for the whole of the said premises, the yearly sum of thirteen hundred dollars, “ from the time of such completion, delivery or tender, during the residue of the continuance of the lease, payable quarterly.” Another covenant of the lease was in these words : “ And it is further mutually covenanted and agreed upon, by and between the parties to these presents, that the said James Heilbron is to erect and finish, at his own expense, the brick buildings on Church street, appurtenant thereto, as soon as the said J. H. can get the same finished and completed, by the workmen, under the contracts, now existing, for the completion thereof; the said buildings to be erected and finished by the said J. H. according to his own plan and directions, and in such manner and form of external and internal arrangements, finish, decoration, convenience and accommodation, as he pleases and deems expedient, without the interference or control of the said George Easterby, in any manner whatsoever, and without in any manner whatsoever releasing the said G. E. from the obligation of this lease : And whenever the said J. H. declares the said buildings completed and fished, *of which he is to be the sole and exclusive judge, and tenders the use and occupation thereof to the said G. E., he, the said G. E. shall be bound to receive and accept the same, without objection, refusal, or pretence, of any kind whatsoever ; and the said G. E. shall, from the time of such tender, become liable and bound to pay the said J. H. the annual rent or sum of one thousand three hundred dollars, payable quarterly,” until the end of the term. The lease is dated the 16th day of Juno, 1836.
    
      COPY OF THE LEASE.
    
      South Carolina:—
    Memorandum of an agreement, made and concluded upon, by and between Dr. James Heilbron, of Charleston, of tlie one part, and Captain George Easterby, of the same place, of the other part.
    The said James Heilbron, for and in consideration of the sum, or yearly rent, hereinafter mentioned, has agreed to let, lease, demise, and to farm let, and by these presents, doth let, lease, demise, and to farm let, unto the said George Easterby, all that certain messuage, piece, and parcel of land, situate, lying and being in the City of Charleston, at the North East corner of Church and Queen streets, measuring and containing on Church street one hundred and sixteen feet, and on Queen street sixty-six feet, together with the three brick tenement dwelling houses, and other buildings thereon, and also the brick buildings now in the progress of erecting thereon, and all the buildings, hereditaments, and appurtenances, to the aforesaid premises belonging, for the term of live years, commencing on the 10th day of July, in the year of our Lord one thousand eight hundred and thirty-six, and ending on the tenth day of July, in the year of our Lord one thousand eight hundred and forty-one ; subject, nevertheless, to the covenants and considerations hereinafter stipulated.
    The said George, Easterby, in consideration of the above letten premises, doth covenant, promise and agree, to pay unto the said James Heilbron, his lawful attorney, executors, administrators, or assigns, for the use and occupation or rent of the said messuage, piece, or parcel of land, with the buildings already erected thereon, at the rate of three hundred dollars per annum, payable quarterly, until the brick buildings on Church street, appurtemmt thereto, now in the pvogress of being erected thereon, are completed and finished ; and as soon as the said brick buildings on Church street, appurtenant thereto, are completed and finished, the said George Easterby, for himself, his executors and administrators, doth covenant, promise and agree, to pay unto the said James Heilbron, his certain attorney, executors, administrators or assigns, for the use and occupation or rent of the whole of the said premises, the yearly rent or sum of one thousand three hundred dollars per annum, from the time of such completion, delivery or tender, during the residue of the continuance of this lease, payable quarterly ; and doth also covenant, promise and agree, well and truly to keep the said premises, and use them, as the intention of this agreement directs, and at tlie end of the said term, on the tenth July, in the year of our Lord one thousand eight hundred and forty-one, to surrender and deliver up tlie same, to the said James Heilbron, his agent, executors, administrators or assigns.
    And it is further mutually covenanted and agreed upon, by and between the parties to these presents, that the said James lleilbron, his executors or administrators, is to erect and finish, at his own expense, the brick buildings on Cliurch street, appurtenant thereto, as soon as the said James Heilbron can get the same finished and completed, by the workmen, under the contracts now existing for the completion thereof; the said buildings to be erected and finished by the said James Heilbron, according to his own plan and diections, and in such manner and form of external and internal arrangements, finish, decoration, convenience, and accommodation, as he pleases, and deems expedient, without the control, interference or control of the said George Easterby, in any manner whatsoever, and without, in any manner whatsoever, releasing the said George Easterby, his executors or administrators, from the obligation of this lease: And whenever the said James Heilbron, his executors or administrators, declares the said buildings completed and finished, of which he is to be the solo and exclusive judge, and tenders the use and occupation thereof to the said George Easterby, the said George Easterby, his executors or assigns, shall be bound to receive and accept the same, without objection, refusal or pretence, of any kind whatsoever : and the said George Easterby, his executors or administrators, sliall from the time of such tender, become liable and bound to pay to the said James Heilbron, his attorney, executors, administrators or assigns, tire annual rent or sum of one thousand three hundred dollars per annum, payable quarterly, until the said tenth July, in the year of our Lord one thousand eight hundred and forty-one.
    And it is further mutually covenanted and agreed upon, by and between the parties to these presents, that the said James Heilbron is to allow to the said George Easterby a deduction of three hundred dollars, from the first years’s rent of the premises, commencing from the date of the lease ; the whole sum of three hundred dollars is hereby stipulated and agreed to be expended by the said George Easterby, in such repairs and improvements as he deems proper, on the dwelling houses and outbuilding already erected ; and the said George Easterby to claim no other deduction or expense of repair, oil any part of the whole premises, during the continuance of the lease. If the said George Easterby wishes or requires any other ordinary repairs, or improvements, to any part of the hereby demised premises, during the lease, the same are to be put and made at his sole expense, without recourse to the said James Heilbron, his executors, administrators or assigns ; but if extraordinary repairs, arising from devastation, by storm, or partial injury from fire, become necessary, during tire continuance of this lease, such extraordinary repairs sliall be made by and at the expense of the said James Ileil-bron, his executors, administrators or assigns. All taxes and assessments, to be paid by James Heilbron.
    And it is further mutually covenanted and agreed upon, by and between the parties to these presents, that the said George Easterby, his executors or administrators, shall and will keep the aforesaid premises, dwelling-houses, and outbuildings, in good repair, and tenantable order, (extraordinary damage, from storm or fire, as aforesaid, excepted,) at his own proper expense, and at the expiration of this lease, restore the same, to the said James Heilbron, his executors, administrators, or assigns, ill like order as ho receives them: And the said George Easterby, for himself, his executors, and administrators, doth covenant and agree, not to assign this lease, or any unexpired term of it, without the consent and approbation of the said James Heilbron, his executors, administrators, or assigns.
    And it is further mutually covenanted and agreed upon, by and between the parties to these presents, that if the dwelling houses upon the messuage or parcel of laud contained in this lease, bo destroyed by lire, at any time during the said term of five years, that this lease shall immediately cease and determine, and be null and void, for the residue of the said term of five years ; and the said James Heilbron, his executors, administrators and assigns, shall be at full liberty to reenter upon the said premises, and repossess himself thereof, without the liinderance, molestation, or disturbance of the said George Easterby, his executors or administrators ; without prejudice, nevertheless, to the legal right of the said James Heilbron, his executors, administrators or assigns, to enforce the payment of such rent as may be due by the said George Easterby, his executors or administrators, up to the period of such destruction by fire.
    Witness our hands and seals, this sixteenth day of June, in the year of our Lord one thousand eight hundred and thirty-six, and in the sixtieth year of the sovereignty and independence of the United States of America.
    JAMES HEILBRON, [l. s.]
    GEORGE EASTERBY, [l. s. j
    
      
    
    
      On the 10th April, 1831, the avowant gave to the plaintiff notice in writing, declaring the new buildings to be finished, and tendering them to him. The plaintiff, without replying in writing to the notice, subsequently occupied the premises. Afterwards the avowant distrained for the advanced rent, and the plaintiff replevied.
    When the avowant had closed his case, the plaintiff proposed to go into evidence, to prove that, at the time of the notice and tender by the avowant, the new buildings were not finished and completed; and that some of the apartments were not in a condition to be occupied. I considered and held, that the plaintiff was estopped by his own deed and that he was also concluded by the fact of entering and taking possession under it, from averring that the buildings were unfinished..
    
      [Copy of defendant’s letter, referred to in tlie Report of his Honor, the presiding Judge.]
    Charleston, April 10, 1837.
    To George Easterby, Esq. :
    Dear Sir : — By the terms and covenants specified in my lease to you, dated 16th June, 1836, of the house and lot at the corner of Church and Queen streets, I agreed to finish the buildings, then in the progress of erection, as soon as I could get them completed ; and whenever I declared the buildings completed and finished, of which, by the lease, I was to be the sole and exclusive judge, I was to tender the use and occupation thereof to you, and you were bound to accept and receive the same, without objection; and from the time of such tender, you became liable and bound to pay me the annual rent of fifteen hundred dollars for the premises.
    The object of this letter is to give you notice that I now declare the said buildings completed and finished, and tender them for your use and occupation; and from this date I shall expect you to pay me the rent of fifteen hundred dollars, by quarterly payments, for the premises.
    You will oblige me by an early answer to this letter.
    Respectfully,
    JAMES IIEILBRON.
    
      The plaintiff also objected, that in the notice of the 10th April, the avowant misstated the amount of the subsequent annual rent to be paid, *and set it down at fifteen hundred dollars, instead of thirteen hundred dollars. I thought the error immaterial, and overruled the objection.
    At the commencement of the term, viz., 10th July, 1836, the workmen in the employment of the plaintiff occupied a portion of the demised premises, for which the original rent was stipulated to be paid, as a workshop, and continued to do so for a considerable time afterwards. Tinder a notice of discount, the plaintiff claimed rent for the use and occupation of the rooms thus occupied. I explained to the jury the circumstances from which the law would imply a contract to pay rent, in the absence of any express agreement, of which there was no proof; and submitted to them, whether the case made furnished evidence to sustain an implied contract, or whether the circumstances afforded grounds to believe that there was an understanding, that the workmen were to be allowed to remain in the occupation of the room free of rent.
    The jury found for the avowant the rent in arrear, with some deductions in favor of the plaintiff, under his notice of discount, refusing any allowance for the use and occupation of the store room.
    The plaintiff appeals from the verdicts, on the following grounds :
    1. That by the true legal, as well as just and equitable, construction of the covenants contained in the lease, the obligation of the plaintiff, to pay *the increased rent, was not to attach until the new buildings were actually finished and completed ; and that the privilege reserved to the avowant, to determine when the buildings wore complete, did not confer upon him an arbitrary right to demand the increased rent, upon his declaring the buildings to be complete, contrary to the fact; but that the exercise of this privilege may be controlled and restricted, by proof that the buildings were not in a condition to be honestly tendered. VV herefore, it is submitted, that liis Honor should not have excluded evidence offered to show that in point of fact, the buildings were not finished and completed, nor even habitable, at the time they were tendered by the avowant.
    2. That his Honor should not have ruled, that the tender made by the avowant was sufficient to render the plaintiff liable for the increased rent, inasmuch as the avowant in making such tender, demanded a higher rent than that stipulated in the lease ; and it is respectfully submitted, that, by accompanying his tender with a demand for such higher rent, the avowant forfeited all benefit he might otherwise have been entitled to claim by his tender.
    3. That his Honor should not have ruled, that whether the tender proved was a sufficient tender of the premises demised by the lease in evidence, was a question exclusively for the Court, and not for the jury.
    4. That his Honor should not have charged, that the plaintiff, if the buildings were not finished and completed, when tendered to him, was bound to have refused to accept them, on that ground, and that his not doing so, was an acquiescence in the sufficiency and propriety of the tender, iuasmuch as there was no evidence of his having accepted the buildings, when tendered : and his Honor had moreover previously ruled, that under the lease, the plaintiff was bound by the mere tender; and, therefore, excluded, generally, all evidence going to show that he ought not to be bound by the tender, as inadmissible in the present actions: whereby the plaintiff was precluded from showing, as he could have done, by the most abundant proof, not only, that the buildings were unfinished and uninhabitable, but that he had actually refused to accept them, on that very ground, at the time of the tender.
    5. That his Honor should not have charged, that if the jury were satisfied that it was the intention of the parties, that the avowant should *occupy a part of the demised premises, as store rooms, &c., during the progress of the new buildings, without rent, they might refuse to allow the plaintiff rent for the use and occupation of such part of the premises, by the avowant; inasmuch as there was no such reservation, nor any expression, or intimation, of such an intention in the lease, nor, indeed, any parol evidence of such an agreement or understanding on the part of the plaintiff.
    6. That under the evidence, the plaintiff was entitled to rent for the use and occupation by the avowant, of part of the demised premises, the possession of which was withheld by the avowant, for a period of eleven months, subsequent to the commencement of the lease ; and that the verdict was erroneous, in not discounting such rent from the amount of the rent claimed by the avowant, for the entire premises.
    7. That the verdict is, in other respects, contrary to law and the evidence.
    Appeal determined at Charleston, February, 1840.
   Curia, per

Barle, J.

The general rule for the construction of covenants is well enough understood ; the intention of the parties, when it can be ascertained from the instrument, must govern ; and to come at this, all the parts of it must be considered together. On a fair construction of the deed in question, we cannot doubt, that the object of the parties was to avoid the very dispute which has arisen. It would seem almost impossible for language to be more explicit; and either the covenant upon which the question arises, means what was supposed in the Court below, or it must be struck out as meaning nothing. It may have been folly in the tenant, to bind himself to accept the tenements and to pay the increased rent, whenever the landlord gave him notice; but that he has bound himself to that extent, cannot be doubted by any one who will read the instrument. To allow the tenant under such a covenant to offer proof that the houses were unfinished, would be to repeal the agreement altogether ; and that we have no right to do. If the houses were unfinished, and he sustained any damage from that cause, he has his right of action on the covenant of the landlord to finish; and this he may have brought at the same time his goods were distrained. If men will enter into covenants which involve them in trouble, the Court cannot relieve them; they must abide the consequences.

It is palpable that the covenants are independent, and each must resort to his own remedy. There is no ambiguity, and they cannot be explained away.

On the other point raised, the Court does not perceive any error in the instructions to the jury. If the judge is allowed to say any thing at all, he must be permitted to give his advice, to suggest such considerations as * will enable the jury to come to a correct conclusion. If the judge were to be muzzled, and not permitted to say any thing on the facts, the complaints against juries would be louder and more frequent than they are. Here, such circumstances were suggested to the jury, as might induce them to come to a particular conclusion. It was for them to decide, and they were not precluded from acceding.

Bailey and Brewster, for the motion. IB. A. De Saussure, contra.

The motion to set aside the verdict is refused.

Gantt, Richardson, O’jSíeall and Butler, JJ., concurred. 
      
      
         Sup. 134. An.
      
     
      
      
         See 2 McM. 425; 1 Mills’ C. R. 227; 8 Rich. 140. An.
      
     