
    M‘Millan & M‘Millan against Vanderlip.
    Where A. agreed to work for B. 10 months, and spin yarn, at three cents per run; and after-wards left the service of B. ; andbroughtaa action against him for spinning 845 runs of yarn, at 3 cents per runt it was held, that the contract of A. was entire, and must be performed as n-condition precedent, before he could bring an action against B., for the price of ' his labour.
    IN ERROR, on certiorari, from a justice’s cou'rb VanderUp sued J. andvl. M‘Millan, by summons, before ayistice, in an action on the case. He declared, stating his demand, September 26, 1812, to be for “ spinning 845 runs of yarn, at 3 pence/;<??• run; for damage for not finding a sizeable jenny, 10 dollars ; for damage for not finding a sufficient instructor, 10 dollars; for damage for spinning bad. roving, 10 dollars; for damage for time lost, for want of roving, 5 dollars.”
    The defendant pleaded the general issue, and there was a trial by jury. ‘ ,
    The plaintiff proved that he had worked for the defendants below, .11 or 13 weeks; and-the witness stated, that the plaintiff said he was to work one year, to spin at three cents per run; but should not make wages, the roving was so bad.™ Another witness said. he understood from the defendants, that .the plaintiff had agreed to work with the defendants, lOf months, at 3 cents per run: and an account was produced, dated September i, 1812, in which the defendants charged1 the plaintiff three dollars, paid to him; and credited him with spinning 845 runs of yarn. One of the witnesses said, he was to have 5 cents a run, and his board; and he said he understood from all parties, that Vandcrlip was to have 3 cents per run, and work I Of -months. In an additional return, it was stated by the justice, that it was understood by him, and he believed by the jury, that the plaintiff below lefjt the service of the defendants below, at the date of the account: though he did not recollect that it was either proved or admitted. The jury found a verdict for the plaintiff below, for 22 dollars and 35 cents; on which the justice gave judgment.
    Wendell, for the plaintiff in error.
    
      Crary, contra.
   Spencer, J.

delivered the opinion of the court. The ques-^on *S) whether the contract of the. defendant in error is an entire contract, operating as a condition precedent ^ and, as lsuch, necessary to be performed before the plaintiffs in error were liable ; or Whether we aré to consider the agreement,, to pay three cents per run, as a distinct "agreement, on the one side ;' and the promise to work for 10j months, as ihdependbnt and unconnected with the rate at which the defendant in error was to spin the yam.' It has been well observed "by Srejeant Williams, in a note to Pordage and Cole, (1 Saun. 320. note 4.) that the old cases proceeded on very subtle and nice distinctions ; and' it might have been added, that some of them were carried to a length that worked great injustice, and defeated the intentions and understandings of men, not versed in nice and technical: rules. ^To show to what unreasonable re-suits the courts arrived,; Í will barely mention two cases. A. agreed to- serve B. a year, and B: agreed to pay him-10 pounds; and it was held, A. might .maintain an action against B« for the money, before any service.' Again, A. covenanted with B. to marry liis daughter; and B. covenanted to convey an estate to A. and -the daughter, in special tail: though A. marryahother woman, or the daughter marries another man, A. may maintain an action against B. on the covenant. . -»

The good sense of modern times has exploded these subtle notions; and contracts áre now expounded according /to the real intention of the parties: thus, in Waddington v. Oliver, (5 Bos. and Puller, 2. N. S. 61.) the plaintiff sold the defendant 100 bags of hops, at' 56 shillings per hundred, to be delivered on or before 1st January, 1805, as might be agreeable to the plaintiff. . On the 12th of Deccm~ 'her, twelve bags were delivered, and .payment was immediately demanded ; and on refusal to pay, a suit Was brought. . The court Were clearly of opinion, that the contract Was entire ; and could not'be split ; and that thé plaintiff had no right to bring an action until the whole quantity was delivered, or until the time, for delivery of the whole liad arrived. The 3d note of Serjeant Williams tó. 2d Saun. 352. furnishes a variety of eases, showing the grounds On.yhich' the latter cases have placed the dependency or independency of1 contracts. There are many distinctions, not necessary now to be noticed ; but the object of them is to promote substantial justice, by ascertaining the intention of the parties, and carrying them into effect, without a literal adherence to words, or the order of sentences-'1

It is evident to my mind, that the parties before us intended that Vanderlip should serve the M'Millans, for 10^ months, and that he should be paid 3 cents for each run of yarn spun by him; and that they intended this as.one entire Contract. The M'Millans could not mean to have paid by the run; and to subject themselves to a suit, toties quoties. We have a right to infer from the plaintiff’s declaration, in the court below,: as.well as from the fact, that one of the witnesses was to have 5 cents a run; that Vanderlip was a novitiate in spinning; and, consequently, that he would be more profitable to his employers in the latter part of the term. If the contract was entire, and looked as well to the price per run, as to the time of service, it necessarily formed a condition precedent: and then, Vanderlip could not sue until he had performed his contract of service, or until the period within which it was to be performed had elapsed.

The latter qualification is drawn from the case of Waddington v. Oliver: though, I confess, I do not perceive the grounds on which it rests. It- appears 'to me, that the construction I have put on this contract, is not 'only warranted by the agreement itself; but that it is a very useful and salutary one. The general practice, in hiring labourers or artisans, is, for 6 or 12 months, at so much per month: the farmer hires a man for 6 or 12 months, at monthly wages; and he takes his chance of 4he good, with the bad months./ It is well known, that the labour of a man, during the summer months, is worth double the labour of the same man, in winter; but upon the principles contended for by the defendant’s counsel, if the farmer hires in the autumn, for twelve months, at monthly wages, the labourer may quit his employ on the first of May, and sue for his wages, and recover them: leaving the farmer the poor resort of a suit for damages. The rule contended for holds out temptations to men to violate their contracts. :The stipulation of monthly pay, or in this case, pay by the rjun, does not dis-join the contract: it is adopted as the means only of ascertaining the compensation, and does not render it less entire./ The case from 1 Roll. Abr. 29. 1. 36. is a very bald case; and the case decided by Hale, at Norfolk, in 1682, (1 Com. Dig. Action, F.) js a very unreasonble decision. The contract was to deliver so much corn, before Michaelmas, for so much the coomb; and a part only was delivered; and he ruled, that assumpsit lay for so .much, after Michaelmas, for, though the agreement was entire, the several delivery makes several contracts. When part of the corn was delivered, towards the fulfilment of an entire contract, and for the convenience of the party delivering, it is extraordinary that such delivery, should have annulled, the contract; but it did not, for. the case adds: “ and the defendant has a remedy for the residue.” This could not be, unless the contract remained unaffected by the several delivery. These are cases decided before the courts adopted the true method of considering contracts, in relation to their dependen-' cy, Or independency.

The entry in the plaintiff’s books proves nothing; for certainly, they were to keep an account of the quantity spun; and if, for the defendant’s accommodation, they were willing to advance cash to him ; that did not vary the contract, or show that they considered themselves liable to pay before the end of the term.

Judgment reversed.  