
    Graves vs. Caruthers.
    Contracts. Obligation of contract. The obligation of a contract for work and labor is neither annulled, because it is ascertained, before the work is begun, that it is unnecessary or useless, nor because the employer cannot determine how he will have it done.
    Same. Same — assignor and assignee. If'one joint undertaker of work, assign to thejjother his interest in the job, the assignee risks the contingencies expressed in the contract, and is bound to pay the consideration promised the assignor, although the employer altogether fail.
    SAME. Same. If canal commissioners employ several joint contractors to construct walls and wing dams, but not to begin till the result should be known of certain dreáging and sluicing, upon which the location, form and dimensions of the walls and dams were to depend, the failure of the contractors for the dredging.and sluicing, and consequent inability of the commissioners to prescribe the location, &c. of the walls and dams, does not discharge the obligation of the contract for the walls and dams on either side.
    The engineers of the hoard of internal improvements, of the United States, for the improvement of the Tennessee fiver, from Florence to Waterloo, projected certain improvements, which were approved by the President, on the 8th April, 183 L, consisting, 1. of excavations of the several channels, by dragging and blasting; and 2, of walls and wing-dams, designated in the engineer’s survey, location and distribution of the work for contract, as sections 1, 2, 3, and 4, embracing respectively the following places: 1. Tuscum-bia shoals, 2. Big Buck shoals, 3. Colbert’s shoals and Brush-river-island shoals, and 4. Bee-tree-island shoals.
    Contracts were made by the board of Tennessee canal commissioners, on the 25th of September, 1830, for the excavations, with Drum, Elder & Co., and for the walls and wing-dams, with Graves, Caruthers & Co. In the latter contract was the following clause — ccAnd whereas, it is the intention of the board of internal improvement of the United States, according to the projected plan above referred to, not to construct the dams or walls, herein specified, before the result of certain dragging and sluicing of the channel, as designated in the engineer’s survey, location and distribution of the work for contract, shall be ascertained, it is expressly agreed and understood, between the parties hereto, that the said board of commissioners reserve to themselves the right and privilege of changing the location and form, and varying the estimated dimensions of the said walls or wing dams, as economy and public expediency may require; and further, that the commencement of the work by the parties of the first part, as hereinbefore required, shall be considered to consist in quarrying and hauling of rocks, of which they shall be at liberty to procure, under the direction of the engineer, at least 10,000 cubic yards.”
    On the 18th of hi arch, 1831, Graves, by deed, assigned to Caruthers all his interest in this contract, being two thirds of it, for $ 9000, of which $5000 were to be paid down, and the remaining $ 4000, in two yearly instalments, for which notes, with two good responsible sureties were to be given. The $5000 were paid by Caruthers in a note for that amount, drawn by him and discounted at the branch of the Bank of the United States, at Nashville. For the $4000, two promissory notes, bearing date with the assignment, were executed by John Caruthers, James Caruthers, and Armour and Lake, each for ‡ 2000 dollars, payable to Gravesj or order at the said branch bank at Nashville, in one and two years respectively. The first was paid. Upon the latter, Graves sued James Caruthers and Armour & Lake in the county court of Madison, on the 17th of December, 1833, in assumpsit, and on the 6th of May, 1834, had judgment for ‡ 2132. The defendants obtained a fiat for a certiorari from his Honor Judge Haskell, on the 18th of June, 1834, and the record of this recovery was certified into Madison circuit court, on the 21st of the month.
    At April Term, 1837, it was tried before Judge Read, of the 10th circuit and a jury of Madison.
    The defendants proved, in order to show a failure of the consideration of the note sued on, that the contract of Drum, Elder & Co. was impracticable, so far as it related to Colbert’s shoals, as the bed of the river there is a solid rock for nearly half a mile in length; that though it was not impracticable to perform that contract, so far as it "related to the other sections of the river therein mentioned, yet that it was impracticable for them to have done it, within the time specified, with their force and means; that they had not, in point of fact, completed, any section of their work, and had finally abandoned it; that the contract of Graves, Caruthers & Co. was an excellent one, and might have been made profitable, if well managed; that the opinion became prevalent, that if the excavations to be done by Drum and Elder had been completed, the navigation of the river would not be at all improved, but rather prejudiced; that this opinion being also entertained by the commissioners, they resolved to abandon the project, believing they were authorised to do so, by the clause of the contract before recited; that though Graves and Caruthers, and particularly Graves, after the assignment of his interest to Caruthers, contended, that their contract with the board was absolute, and that the work, therein men■tioned, could not, in any event, be lessened or diminished, yet' the board resolved not to have the work done, and by authority of an act of the legislature of Alabama, paid Ca-xuthers for his losses, &c., $ 5500, exclusive of the amount of estimated work previously done by Graves and Caruthers.
    His Honor in charging the jury explained the case at large, but summed it up as follows — that if they believed the contract of Graves, Caruthers & Co., for the walls and dams, was practicable, according to its terms, and in reference to the contract of Drum, Elder & Co., the plaintiff was entitled to recover; or, if they believed, that Caruthers derived any benefit, upon the compromise with the commissioners, over and above a reasonable compensation for his expenses and attention to business, the plaintiff would be entitled 'to recover, otherwise they would find for the defendants.
    The jury found for the defendants. The plaintiff moved for a new trial, which was refused, and he prosecuted this appeal in nature of a writ of error.
    W. Stoddert, for the defendants,
    argued that mistake and mutual error will be relieved against, and cited, 1 Com. Dig. 289, in note; 1 T. R. 285; 2 T. R. 645; Fonblq. 432: that upon the assignment of a covenant, an implied warranty will render the assignor liable, if the covenant be avoided, or rendered of no^effect, from any defect attached to the original transaction, Boyd vs. Anderson, 1 Ten. R. 446: that the jury, by their- verdict, found that the quarrying and hauling of the 10,000 cubic yards of stone was not a substantial part of the contract, nor the inducement to it, and the court, upon that point, charged the jury correctly, 2 Kent, 471, 475; substantial error destroys a contract, Pothier on Obligations, 5; 2 Kent, 468: that the court did not err in refusing to charge that the compromise estopped Caruthers from setting up failure of consideration: that the compromise did not hinder the execution of the work on the part of Drum, Elder & Co., it did no injury to Grave’s rights, .since if any thing were made by it, he, as partner, was entitled to a share of it, and a matter ex post facto, like this, could not determine the complexion of a transaction already past; and that if there was any error in the charge of the court, in relation to the effect of the contract of Drum, Elder & Co. in this contract, it was in favor of the plaintiff, as it is really questionable whether Graves and Caruthers did not assume the performance of the contract of Drum, Elder & Co., as a matter certain, and if they did, their failure, without the fault of Caruthers, would of course, annul the contract between him and Graves.
    
    April 13.
    
      
       The late Reporter left no brief or memorandums of the counsel who argued for the plaintiif.
    
   Turley, J.,

delivered the opinion of the court.

Hiram Graves, John Caruthers, and William Brown, entered into a contract on the 25th day of September, 1830, with the board of Tennessee canal commissioners, by which they bound themselves to procure the materials, prepare the foundation and construct the walls and wing dams designated for the improvement of the navigation of the Tennessee below Florence, for which services the commissioners were to pay the consideration agreed upon with the parties, which need not be here specified. — The board of commissioners reserved to themselves the right of reducing or increasing the cost of the work, subject to a reasonable and fair deduction •from, or addition to, the prices agreed upon. The work to be finished within thirty months after the time the engineer should require the work to be begun. The board of commissioners also reserved to themselves the right and privilege of changing (he location and form, and varying the estimated dimensions of said walls or wing dams, as convenience or public expedience might require, and assign as a reason for so doing, that it was the intention of the board of internal improvements for the United States, not to construct the dam or walls before the result of certain dragging and sluicing of the channel should be ascertained; and it was expressly agreed that as soon as the work for dragging and clearing out the channel, or any section of it should be completed, and the result ascertained, the engineer should immediately determine the form and location of the dam in said sections.

After this contract was made, and before any part of it was performed, Hiram Graves, for, and in consideration of the sum of $9,000, assigned all his interest in it to his co-partner, John Caruthers. All of this sum has been paid; except the note for $2000, which is the subject matter of controversy in this suit. After the contract was assigned, the persons employed by the canal commissioners to drag and sluice the river, failed to comply with their contract, part of which it is proven it was impracticable to execute with their means in the time prescribed for its completion. The consequence was that the river was not dragged and cleared, as contemplated, and therefore the board of the Tennessee canal commissioners refused to permit the erection of the dams and wings contracted for by Graves, Caruthers & Co., by which Caruthers sustained losses, for which the commissioners paid him five thousand dollars. But this, it is alledged, did not more than pay him for his expenses; and that the whole affair has been a losing concern to him, because of his not having been permitted to erect the walls and dams, which were the profitable parts of the contract, and without which, he would not have purchased his co-partner’s interest therein.

Upon this state of the case, it is contended that the contract of assignment between Hiram Graves and James Ca-rutbers was void, because at the time it was made, the performance of the contract assigned, depended upon the contingency of dragging and sluicing the river, which was found to be impracticable; and that therefore, there was in fact, no contract to be assigned. To this objection, there are two answers, either of which, in our opinion, are good and sufficient, 1st. There is nothing in the case which shows that it was impracticable to drag and sluice the river. It is spoken of as a matter of great difficulty in part, and as impracticable to its full extent, in the time prescribed in the contract, with the persons who had engaged to do it, with the means by them employed, &c.

The contract made with Graves, Caruthers & Co., was not dependent upon the contract for dragging and sluicing the river; and it would have been no defence for the canal commissioners, if sued upon their contract, to have said that Drum, Elder & Co., failed to drag and sluice the river, and therefore, we refused to execute our contract with you. They had reserved to themselves no such right — their contract for building the walls and wing dams, was absolute, not dependent upon any condition; and if it had been found utterly impracticable to drag and sluice the river, and so made it useless to build the dams, they would have still been liable for a refusal on their part to permit it. It is true they reserved to themselves the right of changing the location and form, and varying the estimated dimension of said wall and wing dams, so commenced, as public expedience might require. But this is nothing like a reservation of the power to dispense with their erection altogether, and they agree that so soon as the work for dragging and clearing out the channel of the river or any section of it shall be completed, the engineer shall immediately determine the form and location of the dam in such section.

The provisions in the contract made it necessary to desist till some portion of the river was dragged and sluiced, before the erection of the dams was commenced; but no time being specified for this to be done, and it not being made to depend upon a contingency, the canal commissioners were bound to have it done in a reasonable time, and if they did not they were liable to an action by Graves, Caruthers & Co. It is not pretended that Graves practised any fraud upon Caruthers in his contract with him; he assigned him all his interest in a valid and subsisting contract, about which Caruth-ers knew as much as he, and because the canal commissioners have failed to execute their part of the contract, furnished no reason why Caruthers should be relieved fiom his. That the commissioners might do so, if they thought proper to disregard this contract and risk the consequences was evident, and affords us no more reason for rescinding Grave’s contract with Caruthers, than would the refusal of a debtor to pay his note which had been assigned without recourse, vitiate the assignment and make the assignor responsible for the amount paid for it. And such a view seems to have been taken of the contract both by the canal commissioners and Caruthers, for they paid him five thousand dollars to cover his damages, sustained by reason of their non-performance of their part of the contract which they need not have done had they reserved the right so to do.

But we are furthermore of the opinion that if such reservation had been made in the contract, Caruthers, by the as» signm ent took it subject thereto, and could not be heard to complain afterwards at its exercise. He got what he bought, there was no fraud practised on him, and though the contract was a loosing one, yet the law compels him to abide by it; so that whatsoever way we look at this contract, we are compelled to say that the court below erred in the administration of the law.

The judgment must therefore be reversed and the case remanded for a new trial.  