
    
      Frederick Krog vs. William Rice.
    
    
      1. A covenanted to build for B, a house of certain dimensions and parts, in a workmanlike manner. B, on his part, agreed to pay A for the whole work, $1105; $405 to be paid when the house was enclosed by weatherboarding and shingling, the remaining .1$700 to be paid when the whole work was completed. Plaintiff averred performance of the contract on his part, but that defendant had broken it, in not paying the money due according to the terms of the agreement. Pleas — I. Performance generally, concluding to the country; and the plaintiff joined issue. 2. Special plea, setting out that the plaintiff did not and would not build the house described in the covenant, according to its minute and particular descriptions. Plaintiff demurred to this latter plea, and defendant joined in demurrer. It was held by the court, that the second plea was bad, and the demurrer should have been sustained.
    3. Held, also, that the covenant to pay the last payment was to be considered as depending on the covenant to finish, and thus as extending only to a part of the consideration on both sides.
    3. The plea of performance should have concluded with a verification, and theplaintiff should have replied, and assigned specific breaches. • •
    
    4. Motion to reverse the decision below, overruling the demurrer, granted; the pleas; and issue ordered to be stricken out, and a repleader awarded.
    
      Before Butler, J., at Barnwell, Fall Term, 1842.
    This was an action of covenant on a special agreement to build a house.
    “ South Carolina, Barnwell District. Agreement between Frederick Krog, on the one part, and William Rice, on the other part, witnesseth — that the said William Rice agrees to employ the said Frederick Krog, to put, place, or build, a two story dwelling house for him, on his residence; dimensions as follows:
    
      The house to be 30 feet wide, 44 feet long, with a portico in front, two stories, 18 feet long, and 9 1-2 feet wide, a pia,zza on the back part of the building, to extend the whole length of the house, of 10 feet wide. The stories of said house 11 and 10 feet, and the garret not to be finished. Dimension of the workmanship as follows: (Lower story.) The portico to be square finished with plain and neat work, the two front rooms with panel work, so far as the surbase, and the rest plain, ceiling all over with cornice the same. The passage with plain dido to the surbase, and the rest plain ceiling all over, and cornice the same as above, with two panel folding doors in front and rear, and the stories to go up in the passage with hand on the entrance, of said house, plain and neat made, and two closets in the rooms of the lower story, and one under the staircase. (Upper story.) • The passage to be plain dido to the surbase, and the rest plain ceiling all over, with cornice plain; the stair-case to go to the garret, a folding panel door in front of the upper passage, to enter the portico, the two front rooms rough ceiling, with a wash board to go round, and plain cornice ; the two back rooms plain dido to the surbase, and the rest plain ceiling all over, with cornice, and to make mantel-pieces to said house, and to make fourteen panel room and closet doors, and to frame, weatherboard and shingle said house, and to make thirty window-frames, with sash and blinds; the frames to contain 18 lights, 8 by 10 glass, and to put all single architrave throughout the whole house, and to put three pair of steps to said house, and to floor the lower story with quartered stuff, and the upper with wide lumber, tongue and grooved. All this said work the said Frederick Krog agrees to perform, or cause to be performed, in a workman-like manner; he binds himself, and every one of his executors and administrators, to perform said work as above mentioned. And William Rice, on his part, agrees, his executors or administrators, to pay unto said Frederick Krog, his executors or administrators, the full and just sum of eleven hundred and twenty-five dollars, ($1125 00,) and. to pay to said Frederick Krog four hundred and twenty-five dollars when the said house is enclosed; that is, to finish, to frame, wea-» therboard and shingle, and to find said Frederick Krog his board, and washing, and lodging, and all his hands he may employ during said term he may lie employed on said house, and to pay unto the said Frederick Krog seven hundred dollars, ($700,) when said work is performed, that is, to finish said house, which will make in full, eleven hundred and twenty-five dollars, to which both parties have set their hands and seals, this, the 24th day of January, 1837..
    (Signed,) F. Krog, [l. s.]
    Wm. Rice, [l. s.]”
    The agreement is set forth in the declaration, with an averment on the part of the plaintiff, that he had kept his part of the agreement, <&c. To the declaration, the defendant put in two pleas. First, general performance; and secondly, a special plea, in which the defendant states and avers that plaintiff had not built the house, or any part of it, as stipulated in the agreement, and that he was not entitled to receive payment until it was completed, or built according to the terms of the agreement. To this plea the plaintiff filed a general demurrer, stating the following causes of demurrer, “ that the covenants contained in the said articles of agreement, as in the. said declaration set forth, are independent, and that it is not necessary for the said Frederick to prove that he did perform, fulfil and keep, all the things in the said articles of agreement contained, on his part to be performed, fulfilled and kept, in order that he, the said Frederick, should have and maintain his aforesaid action thereof against him, the said William; and also, that the said second plea is, in other respects, uncertain, informal and insufficient.” The defendant joined in demurrer. The presiding Judge overruled the demurrer, and sustained the plea. Postea ordered to be delivered to the defendant.
    The plaintiff took an appeal, and moved to reverse the judgment of his Honor, on the following grounds.
    1. Because, under the pleadings, the judgment of the court should have been for the plaintiff. -
    2. Because the demurrer being special, and not general, the plaintiff, if the judgment of the court be against him, is entitled, nevertheless, to judgment of re'spondeat ouster*
    
      3. Because the judgment of the court is contrary to law.
    Martin, for the motion,
    contended that the covenants between the parties were mutual and independent, and if so, the plaintiff had a right to sue. Cited 2 H. Blackstone, 393. Some of the money was to be paid before the work was finished. Where a demurrer is special, the party may amend. Chev. 64.
    Patterson, contra.
    Covenants must be construed by the intention of the parties. The case of Terry vs. Duntze, did not apply. Cited 8 B. and E. 366; 1 Peters. 464 ; 10 J. R. 203. Where a party sues for a rateable part of the price, he must show a rateable performance. The demand is general.
    Bellinger, in reply,
    contended that the agreement in this case belonged to the class of mutual and independent covenants. The performance and the consideration are not necessarily connected. The demurrer admits that the en-entire building was not put up as alleged in the second plea, but non constat that this action cannot be maintained. Cited 6 T. R. 571; 1 Lord Raymond, 124; 1 H. Blackstone, 273; 7 Petersdorff, Ab. 99; 3 Law Library, 94; 15 Mass. Rep.' 505; 2 McCord, 574; 3 ib. 116 ; 2 Bailey, 82; 2 J. R. 72 , 2 ib. 387; 5 ib. 78; The English cases must prevail, from our Act adopting the common law, unless there is something in them against our peculiar institutions.
   Caria, per

O’Neall, J.

The agreement, in this case, is to be construed, as in all other cases, according to the intent and meaning of the parties, to be collected from the words which they have used; and, according to this rule, their covenants are to be regarded as dependent or independent. 1 Saund. 320, note 4, a.

The agreement, on the part of the plaintiff, as set out in his declaration, was to build a house of certain dimensions and parts, in a workman-like manner, for the defendant; and the agreement on the part of the defendant, as also set out in the declaration, was to pay to the plaintiff, for the whole work, $1125; $425 tobe paid when the house was enclosed, by weatherboarding and shingling, and the remaining $700 to be paid when the whole work was completed. The plaintiff avers that he has performed the contract, on his part, but that the defendant has broken it, in not paying to him the money due to the plaintiff, according to the terms of the agreement. To the plaintiff’s declaration, the defendant pleaded performance generally, and concluded to the country; and the plaintiff joined issue. The defendant pleaded, also, a special plea, setting out that the plaintiff did not, and would not, build the house described in the covenant, according to its minute and particular description. To this plea the plaintiff demurred, and the defendant joined in demurrer.

The first point now to be considered is, whether the second plea, thus pleaded,, is an answer to the declaration. I have no doubt it is not. For the plaintiff claims to recover, 1st, $425, on framing, weatherboarding and shingling the house; and 2d, $700 on completing the house. To say that you did not build and complete' the house, is no answer to the first demand. It may be, for aught which appears in that plea, that the house was framed, weather-boarded and shingled, and if so, the plaintiff is entitled to recover $425. It is true, this precise point is nottechically made by the demurrer; but yet it is in substance made, when the plaintiff stated, that the covenants in the said articles of agreement, as in the said declaration set forth, are independent, and that it is not necessary for the said Frederick to prove that he did perform, fulfil and keep, all .the things, in the said articles of agreement, on his part to be performed, fulfilled and kept, in order that he, the said Frederick, should have and maintain his aforesaid action thereof against him.” I agree with the Judge below, that the defendant’s covenants cannot be said to be entirely independent of the plaintiff’s; for there is no doubt each depends upon the other to some extent, but not the whole. The case has been improperly considered heretofore, as if the defendant’s liability depended on the entire completion of the work by the plaintiff, before he could demand to be paid a dollar; but this is a plain mistake. The defendant was to pay to him $425 on framing, weatherboarding and .shmg’ling the house. The liability to pay this sum, depend-. ed upon so much work being done; and so far the covenants were dependent. When, however, so much work was done, the covenant to pay $425 was independent of the covenant to finish the house. If the work stopped at that point, the plaintiff was entitled to demand his $425; and if the defendant was injured by the non-completion of the house, the covenant to complete would constitute matter of discount. This view of the case may be sustained by what is said by Serg’t. Williams, 1 Saunder’s 327, note 4, b : “ Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages,” it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant, without averring performance in the declaration. The illustration of this principle, selected by the annotator, is Boon vs. Eyre, 1 H. B. 373, n. A, by deed, conveyed to B the equity of redemption of a plantation in the West Indies, together with the stock of negroes upon it, in consideration of £500, and an annuity of £160 for life, and covenanted that he had a good title to the plantation, was lawfully possessed of the negroes, and that B. should enjoy; and B covenanted that Á, well and truly performing all and every thing therein contained, on his part to be performed, he would pay the annuity. In an action by A, against B, on this covenant, the breach assigned was the non-payment of the annuity; plea, that A was not, at the time, legally possessed of the negroes on the plantation, and so had not good title to convey. The court of K. B. on demurrer, held the plea to be ill, and added, that if such plea were allowed, any one negro, not being the property of A, would bar the action. That, according to my view, is exactly analagous to this case; for here, as there, if this plea was allowed, and the plaintiff failed to phew that he had put up the last plank, or drove the last nail, he could not recover. While, by considering the covenant to pay the last payment, as depending on the covenant to finish, and thus as extending only to a part of the consideration on both sides, we are enabled to escape such unreasonable results. The second plea is bad, and the demurrer should have been sustained. 2d. On a demurrer fhe whole pleading is opened tq the court, and I think the first plea and issue joined upon it are wrong. In covenant, there is no general traverse. All the pleas are special. The plea of performance should have concluded with a verification, and the plaintiff should have replied, and assigned specific breaches.

The motion to reverse the decision of the Judge below is granted. The pleas and issue are all ordered to be struck out; and a repleader is awarded.

Richardson and Wardlaw, JJ.} concurred.  