
    John S. Rice v. Sims & Worthy.
    The defendants hired of the plaintiff two slaves at certain monthly wages, and the plaintiff agreed to permit defendants to transport his crop of cotton to market, at a certain stipulated rate of freight per bale, in payment of the wages of the slaves. Held, that the stipulations of each party were independent, and that the plaintiff might recover the wages of the slaves, without averring that he had tendered his cotton to be transported to market by defendants.
    Mutual contracts are not mutual conditions, when each goes only to part of the consideration of the other, and a breach of either may be compensated by damages.
    So where plaintiff has performed in part, and defendant has received past of the consideration, the contracts shall be construed independent.
    Tried before Mr. Justice O’Neall, at Chester, Spring Term, 1830.
    
      Indebitatus Assumpsit for wages of plaintiff’s slaves : Plea, general issue. The facts appear from the evidence to be as follows: In November, 1823, the plaintiff hired two negro fellows to the defendants, who were engaged in the boating business, and were to pay wages for the negroes, at the rate of $16, per month for each ; payment to be made by boating the plaintiff’s cotton to market, at the freight of $2, 50 per bale. The defendants retained the negroes in their employment until March, 1824. The plaintiff sold his crop of cotton, consisting of sixty or seventy bales, at home ; and the purchaser did not employ the boats of the defendants to transport it to market. The plaintiff, however, brought this action to recover the wages of his negroes. There was evidence that the defendants’ boats were idle for want of employment at the time when plaintiff’s cotton might have been expected to be ready to be sent to market.
    His Honor charged the jury, that if they were satisfied it was the intention of the parties, that the wages of the negroes were to be paid for by the freight of the cotton, then it was an entire contract, and the plaintiff could not recover, having failed to perform his part, by sending his crop to market by the defendants’ boats.
    Verdict for defendants. Plaintiff appealed, and moved for a new trial on the ground of misdirection.
    Herndon, for the motion.
    Williams, contra.
    
   Harper J.

delivered the opinion of the Court.

The question is, whether the stipulations on the part of the plaintiff to hire his slaves to the defendants at the rate of sixteen dollars per month, and to permit him to carry his crop of cotton of 1823 to market, at the freight of $2, 50 cts. per bale, and on the part of the defendants, to pay the hire of the slaves by carrying to market the plaintiff’s crop at the rate specified, were dependent stipulations, constituting a condition precedent, of which the plaintiff must aver complete performance on his part before he can maintain his action; or whether they are to be construed independent contracts, for the breach of which the remedy of either party is by action for the damage he has sustained. What shall be considered dependent or independent covenants or stipulations, has been frequently matter of dispute, and some of the older cases turned on very refined distinctions. The cases and doctrine are very fully and ably collected and commented on by Serjeant Williams in his note to 1 Saund. 320, n. 4. The present case seems to come expressly within the third class of cases which he enumerates. “ Where a covenant goes only to a 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.”

So Lord Mansfield in Boone v. Eyre, cited 6 T. R. 573. “ The distinction is clear, where mutual covenants go to the whole of the consideration, on both sides they are mutual conditions : but where the covenants go only to a part, and where a recompense may be had in damages, it is a different thing.” In this case the covenants do not go to the whole of the consideration on both sides. If the contract proven had been, that in consideration, the plaintiff would let the defendants have the use of- his slaves for a certain specified time, say four months, the defendants would carry his next crop of cotton to market, whether more or less, the stipulations would have gone to the whole of the considerations on both sides, and they would have been mutual conditions. One thing would have been exactly an equivalent for the other. But the time for which the negroes were to be hired was uncertain, and consequently it was uncertain to how much their hire would amount, at sixteen dollars per month. And if this had been certain, it was perfectly uncertain how many bales of cotton the plaintiff’s crop of 1823, would consist of, and consequently to how much the freight would amount at $2, 50 cts. per bale. Unless there had happened an extraordinary coincidence, not to be intended or expected, it is certain that if every thing had been done that was stipulated to be done on both sides, there would still have been a right of action on one side for hire, or on the other side for freight. If the crop of cotton had failed altogether, it is not disputed that the hire must have been paid in money.

It is plain then that the stipulations do not extend to the whole consideration on both sides, and it forms the precise case in which they are to be considered independent. A difficulty was experienced in the case from the ambiguous use of the term payment. Payment in contemplation, of law is one thing entire and complete, extinguishing the precedent demand. But it was not in this sense that the defendants were to transport the plaintiff’s cotton inpayment of the hire of the slaves. The freight might amount to more or less than the hire. It was rather on account of, or towards the satisfaction of the demand for hire, that the cotton was to be carried. Serjeant Williams cites the case of Boone v. Eyre, 1 Hy. Bl. 273. note a. in which A. conveyed to B. a plantation and negroes, and covenanted that he had a good title, and B. should quietly enjoy, and B. covenanted that A. well and truly performing all and every thing on his part to he performed, he would pay an annuity. In an action on the covenant for the annuity, B. pleaded that A. had not a good title to the negroes. A demurrer to the plea was sustained, and it was added that if such plea were allowed, any one negro not being the property of A. would bar the action. It was said further, that as A. had in fact performed his part of the covenant it would be unreasonable that B. should keep the plantation, and yet refuse payment: Besides the damages sustained by the parties would be unequal. These were therefore construed independent covenants, though the terms strongly indicate the contrary.

The same unreasonable consequences would follow in this case, if we are to consider these as conditions. If plaintiff had permitted the defendaiits to carry all the crop but a single bale, he would have no right to recover any balance of him that might remain. The plaintiff has in part performed his contract and defendants have received the benefit of it. The damages would be unequal. The plaintiff has lost the services of his slaves altogether, and it may be that the damage sustained by defendants was trifling. In the case of Campbell v. Jones, 6 T. R. 570. Though the covenants were decided to be independent on the terms of them, yet it was also held, that where the plaintiff had performed in part, and defendant had received part of the consideration, the covenants shall be construed independent, and the defendants’ recourse is for the damages on account of the plaintiff’s breach. There was nothing to prevent the present defendants’ bringing an action on the plaintiff’s breach of contract in relation to the cotton, or his setting off the damages in the present action. By this means a jury will be enabled to do full justice between the parties.

What I most doubt is, not whether these should be considered independent stipulations of the same contract; but whether they ought not to be regarded as distinct and independent contracts.

The motion is therefore granted.

Johnson J. concurred.

O’Neall J.

dissenting.

In this case I am compelled to dissent from the opinion just delivered. The case was tried before me on the Circuit, and if I had thought there was any error in my instructions to the jury, or that the justice of the case had not been attained, I would not have hesitated to avow my error, and so far as I could, correct it. But however hastily my circuit opinion was formed, now after ample time for reflection, and after all the light which argument could shed on the case, has been obtained, I*am prefectly satisfied that it was correct; and however much I respect tjie 0pjnj0ng 0f my brethren, it is due to myself, as well as the case, that the reasons for my dissent from their opinion should state^‘

Covenants are either dependent or independent, according to the intention and meaning of the parties, and the good sense of the case: and technical words, should give way to such intention. 1 Saund. Pordage v. Cole, 320, note 4. In order to ascertain this intention, Mr. Williams, the learned editor, lays down four rules, which he says may be useful for that purpose : but he does not pretend that they constitute all the tests, by which we are to determine whether contracts are dependent or independent. Indeed if it depends on intention, rules are nothing more than means, by which, in a case óf doubt, we can ascertain it: If parties so express themselves, that the doing of one thing is made to depend on another, then, whether it is according to rule or not, we are bound to construe the contract to be dependent. For every contract plainly expressed, is the law itself.

I deny that it is the leaning of Courts to construe covenants to be independent: If there is any leaning it is the other way. 1 Peters’ Rep. 465. There is no rule of law better established, or more consistent with the ends of justice, than that two actions shall not be brought where one will cover the whole merits. The doctrine that covenants should always be construed independent, would have the effect to compel A. to sue B. and B. to sue A. The effect may be that a recovery by A. will be exactly balanced by another recovery by B. If the contract had been construed to be dependent, the same result would have been obtained in one case by a verdict for the defendant. But it is said if you construe covenants to be dependent, you may produce injustice: This, as in every other case, may be the result. But the same will and does more frequently happen by constructing covenants to be independent. Is there any justice in compelling a man to pay for property before he has obtained the possession, and saying you have your remedy on the covenant of title 1 Is there any justice in compelling a man to pay in money for a thing which he has contracted to buy and pay for in work 1 To say to him you have your remedy by sueing the other party on his covenant for failing to permit you to do the work, is but poor comfort, after a'verdict in dollars may have brought ruin home to him on a contract, which he could have paid, as he stipulated to do, without loss. There is no such arbitrary rule, that Courts will, when they can, construe contracts to be independent. In the case before us, the plaintiff and defendants contracted that the plaintiff, at sixteen dollars per month, was to hire two of his slaves to the defendants, to be by them employed in boating, and whose hire they were to pay out of the freight of the plaintiff’s cotton crop of that year. The plaintiff put the slaves in the possession of the defendants, but refused to permit them to carry his cotton crop to market. The evident sense and meaning of this contract is, that-the plaintiff should furnish them with his cotton to carry to market, and out of its freight the hire was to be paid. How could the plaintiff on this contract intitle himself to be paid in money for the hire of his negroes 1 Only by shewing that he had offered his cotton to the defendants, and they had refused to receive it. If he had declared on the special contract, he must have made and proved the averment; and if he had failed in either of these respects he must have been nonsuited. He however chose to declare on the common counts, for the hire of his slaves, and the special contract was proved by the defendants in their defence: This, however, cannot change the law of the case; the plaintiff after the special contract, was either not intitled to recover on the commou counts, or if intitled at all, it must have been on shewing that he had performed his part of the special contract. But in this case the question whether the covenants were dependent or independent, does not arise. The plaintiff has stipulated to be paid for the services of his negroes in a given way, and the question is, can he recover any thing else 1 Suppose the plaintiff had hired his negroes at sixteen dollars per month to the defendants, to be paid in good whiskey at $1 per gallon, and the defendants had tendered the whiskey, and he had refused to receive it, could he recover the hire 1 Unquestionably not. The ease before us is exactly that case ; the defendants were to carry the plaintiffs crop of cotton, about sixty or seventy bags, at $2, 50 ets. to market, and out of it to pay the hire of the negroes. They offered to carry the cotton, and the plaintiff refused to permit them to do so, having found it to his interest to sell it at home. He now seeks to make the defendants pay for the hire of his negroes, and I think he is not intitled to do so. With my consent, no man who has violated his part of a contract, shall compel the other to pay for his part. I think the motion ought to be refused.

Motion granted.  