
    A. & G. Todd v. Summers.
    
    July Term, 1845.
    Rewisburg-.
    [44 Am. Dec. 379.]
    1. Covenants — Dependent—When Construed as Independent. — Covenants though dependent In form, will be construed as mutual and independent, when it is necessary to effect justice between the parties thereto.
    2. Same — Covenant to Do Two Things — Part Performance. — A party having covenanted to do two things, one of which he has done, will be allowed to maintain an action for the part done, as upon an independent covenant.
    3. Same — Same—Same—Defence.—If the failure of the party suing on the covenant, to perform any of the acts which he had covenanted to perform, has been injurious to the other party to the covenant, he may set up this injury as a defence pro tanto to the action.
    This was an action brought by Summers against A. and G. Todd, on a parol agreement dated the 9th of April 1838, by which Summers agreed to sell to the *Todds his interest in a tract of land on Little Sandy river, including his improvements thereon; for which they were to make him 50,000 good staves by the next Christmas, he sawing the stuff to their hands; and they were to make 25,000 more good staves by the 1st of May 1839, and 25,000 by the 1st of November of the same year; Summers to board the hands whilst making the staves, and the Todds to pay him ten days sawing with two hands.
    The defendants pleaded the general issue; and it was agreed by the counsel in writing that the defendants might give in evidence at the trial of the cause, any matter which might be specially pleaded, and that the plaintiff might give in evidence any matter which might be replied thereto.
    On the trial of the cause it appeared that the defendants had been put in possession of the land, and continued to hold it; and that they had made from eighteen to twenty-five thousand staves in 1838 and ’39, out of timber sawed by the plaintiff; but he had not sawed the balance of the timer which by the agreement he was bound to saw. Thereupon, on the motion of the plaintiff, the Court instructed the jury: “that if they believed the plaintiff had performed his part of the agreement which related to the land, except that which related to the sawing of the timber, the stipulations in the agreement became thereupon mutual, and independent of each other; enabling the plaintiff to recover against the defendants for not making the staves as in the agreement provided, without shewing that he had prepared the timber by sawing the same. And that for any failure on his part to perform the conditions on his part to be kept, he was liable to the defendants in an action to be brought by them, for any damages which they had sustained; but such damages could not be allowed in this action.”
    *To this opinion of the Court, the defendants excepted, and the jury having found a verdict against them, and the Court having entered judgment thereon, they applied for, and obtained an appeal to this Court.
    B. H. Smith, for the appellants,
    referred to the cases of Glazebrook v. Woodrow, 8 T. E. 366, and Worsley v. Wood, 6 T. E. 710.
    No counsel for the appellee.
    
      
      For monographic note on Covenants, see end of
    
    
      
       Pleading and Practice — General Issue — Recoupment of Damages.- -in Columbia Accident Ass'n v. Rockey, 93 Va. 085, 25 S. E. Rep. 1009, it is said : " In the case of Todd v. Summers, 2 Gratt. 168, the general issue only was pleaded, but the parties agreed, when the issue was made up, that the defendants and plaintiff might give in evidence any matter which could have been specially pleaded or replied according to law. It appeared upon the trial that the plaintiff had not fully performed his part of the contract sued upon, but the court instructed the jury that the defendants could not be allowed in that action any damages they had sustained by any failure of the plaintiff to perform the agreement on his part. This court held that the defendants were entitled in that action in reduction of the claim of the plaintiff, to the benefit of any damages they had sustained by his failure to comply with the agreement on his part, and reversed the judgment of the lower court for the error contained in its instruction.” See also, Davis v. Baxter, 2 P. & H. 133.
    
   ALLE.N, J.

When the issue was made up in this cause, the parties agreed that the defendants and the plaintiff might give in evidence any matter which could have been specially pleaded or replied according to law. On the trial the Court instructed the jury, that if they were satisfied the plaintiff had performed that part of the agreement which related to the land, the stipulations became mutual and independent, enabling the plaintiff to recover against the defendants for failing to make the staves, without shewing he had sawed the timber. That for his failure he was liable to the action of the defendants for any damages they had sustained, but that such damages could not be allowed in this action. I think there was no error in the -first part of this instruction. Covenants and agreements are construed according to the intention of the parties, and the good sense of the case. Though in form they may be dependent, yet to prevent injustice they are treated as independent. Boone v. Eyre, 1 H. Black. 273; Bream v. Marsh, 4 Leigh 21.

If this agreement were construed as dependent, the plaintiff will have lost his property without receiving any compensation. The defendants agreed to perform the work by a certain time. They could not be considered as undertaking to perform it at any subsequent period during their lives, however inconvenient it might be to do so; If the plaintiff sued, he would be compelled to aver and prove a performance on his part, to '^entitle himself to a recovery; and the time having passed within which the agreements on the one part arid the other, were to be complied with, he could not sustain his action. These considerations have induced the Courts so to construe agreements, as to prevent a failure of justice; to hold them to be independent, when the necessity of the case, and the ends of justice require it, notwithstanding the form. But the principle which has led to this construction, implies, that it should be in subordination to the just rights of the other party. The plaintiff is in justice entitled to so much as may be due, after allowing for all deductions growing out of his own failure to comply with his engagements. Otherwise an inducement is held out to violate his own engagements. As in the present case, it is possible that the price asked and given for the land, may have been most materially affected by the mode of payment. It would be unjust, under such circumstances, to permit a party, by his own act, to prevent a literal performance, and then recover the nominal price, though it might greatly exceed the cash value of the property. As his action is, to be sustained to effectuate the ends of justice, his claim must be held as being modified by the just demands of the other side, growing out of the circumstances of the case, and arising from his own neglect or failure. The effect of these considerations in reducing the amount of his claim, is a question for the jury to determine. It seems to me, therefore, there would have been no necessity for a special plea to let in evidence of the plaintiff’s failure, and all the circumstances of the transaction, to enable the jury to determine what injustice he should recover.

But on the agreement of the parties here, there can be no doubt that the defendants could have relied upon this matter by.- a special plea under our statute.

I think, therefore, the instruction was erroneous in holding that the defendants could not be allowed in this *action, under the pleadings and agreement aforesaid, the damages sustained by them, if any, by reason of the alleged failure of the plaintiff to comply with the agreement on his part.

The other Judges concurred.

The.judgment reversed, verdict set aside, and cause remanded for a new trial.  