
    Beach et al. plaintiffs in error, vs. Crain, defendant in error.
    The plaintiff granted to the defendants a right of way over his land, and covenanted to erect a gate at the terminus. The defendants covenanted in the same instrument to make all the necessary repairs to the said gate. The plaintiff erected the gate, and the same was removed by some person unknown. Held, that the defendants’ covenant bound them to replace the gate.
    
      Held also, that the covenant was continuing, and therefore that an action brought thereon by the plaintiff after the gate had been removed, to recover for damages occasioned by cattle coming on to his land in consequence of such removal, and judgment in such action in favor of the plaintiff were not a bar to another action on the same covenant'to recover for damages accruing after the commencement of the first suit.
    The proper measure of damages in an action upon such a covenant, after the retnoval or destruction of the gate, is not the cost of rebuilding such gate, but the actual injury sustained by the covenantee upon his land.
    In December, 1846, William C. Crain sued Isaac K. Beach and Henry M. Beach in a justice’s court in Herkimer county, and declared upon a covenant contained in an instrument executed between the parties in the words following, viz.:
    “ For value received of Henry M. Beach and Isaac K. Beach, and Abram Van Horn, I, William C. Crain, do hereby grant, release and convey to the said Henry M. Beach, Isaac K. Beach, and Abram Van Horn, and to their heirs and assigns forever, a right of way or road, through the lands of said William C. Crain, situate in the town of Warren, in the county of Herkimer, and on the late William Tunnacliff farm, and beginning in or near the corner of the garden of Joshua Thomson, on the easterly side of the road leading from the Tunnacliff house to Samuel Coleman’s ; thence an easterly course, where the road now runs, and which has been occupied as a road or passway by the said Beaches and others, to where the same intersects the lands of said Beaches, and to use and occupy the same for a road or passway by the said Henry M. Beach, Isaac K. Beach, and Abram V an Horn, their, and their several heirs and assigns forever.
    It is further mentioned, stipulated and agreed by and between the said William C. Crain, and the said Henry M. Beach and Isaac K. Beach, that the said William C. Crain shall, at his own cost, erect a good substantial .gate at the terminus of the road, in the corner of the garden of said Thomson above mentioned, and made to swing both ways, and may keep the said gate there during his pleasure, and all the repairs necessary to be made to said gate to be made by said Beaches, and in passing and repassing said gate said Beaches are to use common care in having said gate shut after them ; it is further agreed that said gate may be taken down and kept down during the winter season in each and every year during the time said Crain shall choose to have a gate kept there.
    Witness our hands and seals, this 25th day of August, 1845.
    William C. Crain, [l.s.] Isaac K. Beach. [l.s.] Henry M. Beach, [l.s.]”
    
      The declaration averred that the plaintiff on the 25th day of August, 1845, erected a gate at the place indicated in the instrument, and in pursuance of the covenant on his part. Tha breach complained of was that the defendants did not, after the erection of the gate, and while it was the pleasure of the plaintiff to have a gate contmued at that place, make the necessary repairs thereto, but, on the contrary, on the 19th of October, 1846, suffered the gate to become dilapidated, broken down and nearly destroyed, and to remain in that condition until the 30th of November, 1846, by means of which the plaintiff had suffered great damage by cattle, &c.
    The defendants pleaded the general issue, and gave notice therewith that they would prove that the gate was removed about the 22d of June, 1846, and had not since that time been rebuilt; that the defendants had refused to replace the gate after it was so removed, and that nothing had been done to it since; that the plaintiff, on the 29th of September, 1846, sued the defendants in a justice’s court and declared upon the same covenant above set forth, alleging as a breach thereof that after the erection of the gate in question, and while it was the pleasure of the plaintiff to continue it, the defendants did not keep the same in good repair and condition, but suffered it to become dilapidated, destroyed and removed, and would not replace the same by the erection of a new one or otherwise, whereby the plaintiff was damaged by reason of cattle grazing on his land, &c.; that the defendants pleaded in that suit the general issue, and 'gave notice therewith that they would prove that the gate had been wholly removed, that they had never refused to repair it, and that the plaintiff had not kept a gate as he was bound to do; that on the 19th of October, 1846, the said ormer suit was tried, and judgment rendered on the same day m the plaintiff’s favor for one dollar damages, and costs of suit.
    On the trial of the present action, i't was admitted that the parties executed the covenant above set forth; that soon after the execution thereof the plaintiff erected a gate at the place specified therein; that such gate was removed about the 23d of June, 1846, by some person unknown, and had never been found; that the gatepost and two iron staples remained; that before the 1st of September, 1846, the plaintiff requested the defendants to replace the said gate, which they refused to do; and that the cost of rebuilding said gate would be one dollar, besides lumber. It was also admitted that a former suit was brought, and that the proceedings and judgment therein were truly stated in the defendants’ notice above set forth; and that on the trial of such former suit the same facts were proved which were admitted on the trial of this cause. It was further admitted that this suit was brought to recover damages on account of the gate remaining unrepaired or not rebuilt from the 19th of October, 1846, to the 30th of November, 1846, as alleged in the declaration.
    Upon the above pleadings and admissions the cause was submitted to the justice, the parties agreeing that if he found for the plaintiff he might assess such damages as he should think just. The justice decided in favor of the defendants, and his judgment was removed by certioraii into the common pleas of Herkimer county, and was affirmed by that court. The supreme court sitting in the fifth district, on error brought, reversed the judgments of the common pleas and of the justice, and the defendants thereupon brought error into this court.
    
      H. Denio, for plaintiff in error.
    I. The gate in question having been taken off and carried away without the fault of the defendants below, their covenant respecting it became inoperative until it should be replaced by the plaintiff below. The cases where a covenant to repair has been held to oblige the party covenanting to rebuild, were between landlord and tenant; and the principle is only applicable to that peculiar relation, which did not exist in this case. The language respecting repairs, in the covenant under consideration, is peculiar, and not like that in leases, which has been construed as a covenant to rebuild. “ Here it is ; “ and all repairs, necessary to be made to said gate, to be made by said Beaches.” The covenants in the cases on which this doctrine is founded, are to repair, uphold, support, maintain, amend and keep the demised premises, or to deliver them at the end of the time, in the same state as when taken, or equivalent language. (Bullock v. 
      Dommitt, 6 T. R. 650; Phillips v. Stevens, 16 Mass. 238; Walton v. Waterhouse, 2 Saund. 417, 422, a. note, 2; Pasteur v. Jones, Cam. & Norw. R. 194.) To render the defendants’ covenant operative, there must be a gate in being, upon which “ the repairs necessary to be made,” can be put. Here there was no gate in existence at the time of the alleged default in making repairs. (Co. Litt. 206, b.) The covenant to repair was at least suspended while the plaintiff suffered the passage to remain without a gate. When he shall again choose to have a gate there, and shall put one there, the covenant may again become operative.
    II. If it be held that the defendants were bound, under their covenant, to replace the gate which had been taken away, then it is insisted that the former recovery was for a breach of that covenant, and that no other action can be maintained for not replacing or rebuilding that gate. (Kitchen v. Campbell, 3 Wils. 308; Rice v. King, 7 John. 20; Johnson v. Smith, 8 id. 383.) The legal rule of damages in that case, was the amount it would cost to erect a new gate. (Fish v. Falley, 6 Hill, 54.) The present suit is brought without any new gate having been erected, and without the slightest change in the actual circumstances, and upon the same identical evidence which was given in the former suit; and it is sought to be here reviewed, on the principle that the covenant to repair was, in substance, a covenant to rebuild, or replace the gate, which the defendants had failed to do—the precise grievance alleged in terms, and proved and recovered for, in the other suit. Where the same evidence will support both actions, the first one is a bar to the second. (Kitchen v. Campbell; Rice v. King; Johnson v. Smith, supra)
    
    III. If the defendants had any duty to perform respecting the gate, after the removal of it, it was to replace it. This was one distinct and entire thing, and could not form the subject of several, but only of one suit. (Fish v. Falley, supra, and cases there cited) Suppose a covenant in terms, by a tenant, to rebuild a house on the demised premises, in case it should be destroyed by accident, it would be preposterous to allow the landlord to bring an action every day or week, for the damages arising from the inconvenience he continually suffered for the want of a house. He would recover in one suit the expense of erecting the house. If a party entitled to the benefit of a contract, can protect himself from the loss arising from the breach at a reasonable expense, he is bound to do so; and the law will not tolerate him in an attempt to make the defendant’s default as expensive as possible. If the- defendants were bound to replace this gate, and did not, the direct legal damage was the trifling expense the plaintiff would incur by doing it himself; and he had no right to leave his fields exposed, in order to charge the defendants with the serious damages which might ensue. (Miller v. The Mariner’s Church, 3 Greenl. 51 ; Shannon v. Comstock, 21 Wend. 461; Heckscher v. McCrea, 24 id. 304.) The defendants have been sued for not replacing the gate, and a judgment was rendered for the expense of replacing it. It was then the plaintiff’s duty to replace it before he again prosecuted the defendants. Otherwise he will have the benefit of a judgment for the cost of the gate, and may still compel the defendants to replace it.
    
      F. Kernan, for defendant in error.
    1. The defendants below were bound to replace the gate. The plaintiff agreed to make one good substantial gate, and was to do nothing more. The defendants contracted to make all necessary repairs, that is, to keep the gate fit for use. One who agrees absolutely tc repair is bound to do so, although the subject matter of the undertaking is destroyed by fire or other accident. (Kent’s Com. 467,8, and cases there cited; Chit, on Cont. 336, and note; Phillips v. Stevens, 16 Mass. 238; 2 Saund. 420, note 2 at 422, a; Walton v. Waterhouse, 6 T. R. 650; Cooke v. The Champlain Transportation Co. 1 Denio, 91, 104.) The construction we contend for is especially due to this contract, when we look at the subject matter' and the situation of the parties. The plaintiff granted • to the defendants a perpetual right of way over his land, and there can be no doubt that the defendants intended to bind themselves to make repairs so often and to such extent as to protect the plaintiff from damage by their use of such right of way. (Chit, on Cont. 74, 5, 6; 6 John. 
      49.) It is to be observed also that the gate was not totally destroyed or removed. A very essential part, to wit, the posts, was. left standing.
    II. The former suit is no bar to the present action. That suit was for damages sustained before it was commenced, by cattle getting upon plaintiff’s land, in consequence of defendant’s omitting to keep the gate in repair and closed. This suit is for damages sustained by cattle coming upon his land subsequent to the former suit, in consequence of defendant’s neglect subsequent to that suit to keep the gate in repair. They are distinct breaches of this continuing covenant, the one occurring after the recovery for the other was had. The plaintiff can maintain an action on the covenant, and recover damages so often as they accrue to him by the omission of the defendants to fulfil their obligation, and in each action he can only recover such damages as he has sustained prior to its commencement. (13 Wend. 530; 2 Saund. Rep. 169, 171, note 1; Hambleton v. Veere, 2 Saund. Rep. 337; Cook v. Whorwood, 2 Burr. 1087 ; Robinson v. Bland, 1 Chitty’s Pl. 390 ; 6 Cowen, 225; 2 Wend. 369; 2 Cowen & Hill’s Notes, 966; 19 Wend. 207, 208, 209; 15 Pick. 409.) The former recovery was not for a total but a partial breach of the contract. It did not put an end to the contract. The plaintiff in that suit sought to recover and could legally only have recovered the damages which he had sustained prior thereto. He did not and could not have recovered the price of replacing the gate. The law does not as a consequence of this breach and recovery devolve on the plaintiff the duty which the defendants were bound by their covenant to perform. Such a rule of law would be unjust towards both parties.
   Wright, J.,

delivered the opinion of the court. This case involves the consideration of two questions, either of which, if determined against the defendant in error, would defeat his re-, uovery. 1st. Whether, under their covenant to make all necessary repairs to the gate, the duty of rebuilding or replacing it devolved in law upon the Beaches. 2d. Whether the former suit is a good bar to the present action.

1. It is to be observed that the Beaches covenant in express terms to make all necessary repairs to the gate, and in passing and repassing it to use common care in having it shut after them. In the contemplation of the parties, the gate was to be erected and maintained for the protection of Crain, whilst the Beaches enjoyed the right of way across his lands. It is a familiar principle that in determining the meaning of a contract, the subject matter, and tire situation and true intention of the parties, are to be considered. In this case, Crain released to the Beaches and one Van Horn, and to their heirs and assigns, a right of way or road forever through his lands ; and as a part of the agreement to be performed by him, it was provided that he should erect a good and substantial gate at the terminus of such road. As I read the contract, Crain bound himself no farther: but it was obviously the intention of the parties that the gate so erected should be maintained and kept up during the enjoyment and use of the road, unless Crain should assent to its discontinuance or removal. To effectuate this intention, the Beaches covenanted that “ all the repairs necessary to be maüe to said gate should be made by them, and that in passing and repassing it they should use common care to shut it after them.” They covenanted therefore generally to repair; and I think the reasonable construction of the contract is, that they are to make not only ordinary repairs, but all that are necessary to maintain and keep up the gate fit for use, and for the purpose intended, during the pleasure of Crain, and that should it be removed without the knowledge or agency of Crain, or destroyed in whole or in part by dilapidation or accident, they are to replace or repair it. This construction seems to be in accordance with the intent and spirit of the contract, and is in harmony with the tionstruction placed upon similar covenants in numerous adjudged cases. Indeed, it has always been adjudged that upon a covenant to repair the covenantor is bound to rebuild a house accidentally destroyed by fire or thrown down by enemies during his term. (Bro. Cov. 4; Paradine v. Jane, (All. 27,) Dyer, 33 a, pl. 10; Earl of Chesterfield v. Duke of Bolton, Com. Rep. 627; Walton v. Waterhouse, 2 Saund. R. 422, a. note ; Bullock v. Dommitt, 6 T. R. 650; Phillips v. Ste vens, 16 Mass. R. 238.) It was contended on the argument however, that these were cases between landlord and tenant, and that the reason alleged for the construction was only applicable to that peculiar relation : but the principle was aoplied in the case of the Brecknock Company v. Pritchard, (6 T. R. 750,) where the defendant on a covenant to keep a bridge in complete repair for seven years, was held liable to rebuild, the bridge having been washed away by an extraordinary and unusual flood of water. The counsel for the defendant, in that case, made the point that is now made here, that the cases to sustain the doctrine that a covenant to repair obliged the party covenanting to rebuild, were between landlords and tenants, and that in the case of Paradine v. Jane, it was mentioned as one of the reasons for the judgment of the court, that as the tenants are entitled to the casual profits, they ought to be held liable to the casual losses. But the court took no notice of the distinction attempted to be drawn by counsel, °nd Lord Kenyon, in giving judgment,, adopted the true distinction taken in the books, viz: “ When the law creates a duty and the party is disabled to perform it without any default in him, and he has no remedy over, the law will excuse him; but when the party, by his own contract, creates a duty or charge upon himself, he is bound to make it good if he may, notwithstanding any accident by inevitable necessity, because he might have provided against it by his contract.” Although the covenant in the last mentioned case was “ to keep the bridge in complete repair for seven years,” no one doubted that it involved the rebuilding of it in the event of its destruction during that time. The cove nant of the Beaches in the case under consideration is substantially to keep the gate in repair, whilst it is the pleasure of Crain that it should remain. Had they chosen to narrow the effect of their covenant, they might have done so, by excepting from the operation of their contract the identical duty or charge they are now asked to perform.

It has been seen that the covenant to repair, has been uniformly construed as importing the duty to rebuild ; but the counsel for the plaintiffs in error insists, that the covenants in the cases on which this doctrine is founded contained words of broader and more comprehensive signification than the word “ repair” singly imports—they were “ to repair, uphold, support, maintain, amend, and keep the demised premises, or to deliver them at the end of the term in the same state as when taken, or equivalent language.” It is not perceived that these superadded words in the precedents enlarge the obligation 01 duty to be performed by the party covenanting, nor has any adjudged case ever maintained that they do. The covenant is essentially one to repair. But is the counsel strictly accurate as to his facts ? I have looked at two of the cases which he cites. The covenant in the case of Bullock v. Dommitt, (6 T. R. 650,) was not “to uphold, support, maintain, amend and keep the demised premises,” but “ to repair, uphold, support, maintain, amend and keep the premises, in needful and necessary repair.” So also, in Walton v. Waterhouse, (2 Saund. R. 422, a,) the covenant was “ to repair, support, uphold, maintain, amend and keep the dwelling house in good and sufficient repair.” These are covenants to repair, and nothing more; and the duty is not enlarged by the additional words. Should we hold that the Beaches were not bound to rebuild or replace the gate, we would necessarily overrule a long line of adjudged cases.

2. Is the present action barred by a former recovery? The covenant of the Beaches is a continuing covenant. Their obligation is to repair the gate as often as repairs are needed, and they cannot discharge themselves from the effect of their contract, or change the rights of the parties, by a mere refusal to perform. In other words, they cannot by such refusal put at an end, for all future time, the duty imposed upon them by their covenant. Indeed, the counsel for the plaintiff in error admits, that if Crain should replace the gate, the covenant of his clients may again become operative ; thus, by his admission, negativing the idea that the refusal to rebuild or replace, worked, under the circumstances of this case, a total and final breach of the covenant, insomuch that the measure of damages in the former suit was, or should have been, the cost of erecting a new gate, and such sum as would be necessary to keep it in repair during the period that Crain should desire it to be kept up. Neglecting, at any time, to make necessary repairs to the gate, or to shut it in passing or repassing, would have been a partial breach of their covenant, and Crain could have recovered damages for any injury necessarily resulting therefrom. So for a like neglect, damages might be recovered, for injuries accruing subsequently to the former action. It is not perceived, therefore, how a refusal to repair could change the obligations or rights of the parties, or introduce a new and different rule of damages. To constitute an effectual bar, the cause of action in the former suit should be identical with that of the present. It is the same cause of action when the same evidence will support both the actions, although they happen to be grounded on different writs. (Rice v. King, 7 John. 20.) But the evidence in both actions may be in part the same; yet the subject matter essentially different, and in such case there is no bar. For example, if money be awarded to be paid at different times, assumpsit will lie on the award for each sum as it becomes due. So, on an agreement to pay a sum of money by instalments, an action will lie to recover each instalment as it becomes due. In covenant for non-payment of rent, or of an annuity payable at different times, the plaintiff may bring a new action. toties quoties as often as the respective sums become due and payable ; yet in each of these examples, the evidence to support the different actions is in part the same. In this case the same covenant was the foundation of both actions ; the s.ame evidence, therefore, in part, is alike common to both: but there is this differencein the former suit the breach was assigned, and the actual damages laid as having accrued prior to the commencement thereof; in the present, damages are sought to be recovered for a breach subsequent to such former action. In the present action, the plaintiff could not have recovered for damages that had accrued prior to the first suit, for he is not permitted to split up an entire demand, and bring several suits thereon; but he may show a breach subsequent to the former suit, and recover the actual damages arising from such subsequent breach. On the last trial, a breach of the covenant to repair subsequently.to the former action was admitted, and for this Cram was entitled to recover nominal damages, with such actual damages as could be shown to have accrued from such breach since the former recovery. This must necessarily be the effect of a continuing covenant. The former recovery, therefore, could be no bar to the present suit.

The plaintiffs in error insist that Crain did recover, or legally should have recovered, in the first suit, a sum sufficient to enable him to replace the gate. But this argument supposes that upon the Beaches’ refusing to repair, there was a total breach of their covenant, and that they could relieve themselves from subsequent obligation by the payment of a gross sum in damages. If this were so, Crain’s recovery should also have embraced a sum sufficient to keep the gate in necessary repair whilst it was his pleasure that it should remain: a sum that 1 imagine there would be insuperable difficulty to estimate. Whilst the obligation of the plaintiffs in error continued, and it was entirely practicable for them to perform, I do not well see how the value of a new gate could have legitimately formed a part of the damages to be recovered under the pleadings and evidence in the first suit. It is possible, that if Crain, for the protection of his lands, and with the view of making the default of the Beaches the least expensive to them, had, prior to such suit, rebuilt or replaced the gate, he might have recovered the cost thereof in the shape of damages. Bu$ it is enough to say that no such thing was done; neither did the law devolve upon him a duty which the plaintiffs in error had covenanted to perform, and which in its performance was neither difficult nor im practicable. As a matter of fact, it is obvious from the pleadings and evidence in the first suit, and the amount of the judgment therein, that the cost of erecting a new gate was not recovered ; as a matter of law, under the circumstances of this case, it ought not to have been.

I am of the opinion that the judgments of the justice and common pleas should be reversed, and that of the supreme court affirmed.

Judgment affirmed. 
      
       See I Johns. Cas. 492, note a; Cowen & Hill’s Notes, 823-4; 2 Sm. Lead. Cas. 473—9.
     