
    Cobbs v. Fountaine.
    October, 1825.
    Contracts —Construction—Rules Governing.  — The rules which govern the construction of contracts.
    Same — Same-Case at Bar. — A stipulation to pay- on a particular day. unless some event shall happen which, in its nature may happen either before or after that day, implies that the money is to be paid, if the event does not happen before that day.
    Declaration — Sufficiency of. — A declaration which charges only that the defendant "hath and does refuse to pay,” without alleging- that he has not paid, is good upon general demurrer.
    
      Appeal from the Superior Court of Law for the county of Buckingham.
    Fountaine brought an action of debt against Cobbs, in the County Court for $300, on the following note:
    “If William Cobbs, who is now prosecuted for the charge of murdering Maxey, is not found guilty of murder in the first degree, and sentenced for that crime, I will pay to Waller L. Fountaine, the sum of two hunded dollars, on or before the 12th September, 1819; and I am to pay him one hundred dollars at any rate, 12th September, 1818.
    “Witness my hand and seal this 12th September, 1817.
    “Thomas Cobbs, (Seal.”)
    *The declaration avers, that the said Cobbs was not sentenced for murder in the first degree, whereby right of action hath accrued to the plaintiff, to have and recover the aforesaid sum of $100, after the 12th of September, 1818, and also the further sum of $200, after the 12th September, 1819; but the said Cobbs “the aforesaid several sums hath and doth refuse to pay, to wit: the sum of $100 on the 12th September, 1818, and the sum of $200 on the 12th September, 1819,” &c. ’
    The defendant pleaded payment; and af-terwards, on the calling of the cause for trial, with leave of the Court, he pleaded that the plaintiff ought not to have and maintain his action, for the $200 claimed in the declaration, because the defendant had never been arraigned, tried and acquitted of murder in the first degree, but that the prosecution against him is still depending and undetermined.
    The plaintiff demurred generally to this plea, and issue was joined on the demurrer.
    The plaintiff also excepted to the opinion of the Court, allowing the said plea to be filed.
    The Court sustained the demurrer and over-ruled the plea; and the jury, on the plea of payment, found for the plaintiff the amount of the bond, subject to a credit of $100 paid 12th September, 1818, with interest, &c. if in law it be for $300. But if in law, the bond be for $200, they found for the plaintiff for that sum, subject to the credit aforesaid, with interest, &c.
    The Court decided that the plaintiff should recover $300 with interest from the 12th of September, 1819, subject to a credit for $100, paid 12th of September, 1818.
    On an appeal to the Superior Court of Law, the judgment was affirmed; from which decision the defendant appealed to this Court.
    Wickham, for the appellant,
    contended:
    1.That the declaration was bad for not averring non-payment of the debt. In support of this position, he cited *Buckner and wife v. Blair, &c. 2 Munf. 336; Green v. Dulany, lb. 518; Norvell v. Hudgins, 4 Munf. 496; Nicholson v. Dixon’s heir, 5 Munf: 198.
    2. The plea was properly received.
    3. The time of payment, mentioned in the note, was of no importance in this case. The substance of the agreement was, to pay the money if the defendant should be acquitted; which not having occurred, the defendant was not bound to pay.
    Leigh, for the appellee.
    As to the cases cited by Mr. Wickham, on the first point, they only apply to a total absence of averment, not to an imperfect averment. Here it is alleged that the defendant “hath and doth refuse,” which is undoubtedly good, on general demurrer.
    The remark as to the time of payment, is in direct opposition to the terms of the note, which fixes the day of payment at the 12th of September, 1819; and the condition is, not that the defendant shall be acquitted, but that_ he shall not be found guilty of murder in the first degree, &c. He has not been found guilty, and, therefore, the condition is performed.
    October 24.
    
      
      Contracts — Construction — Rules Governing. — See monographic note on “Contracts” appended to Bnders v. Board of Public Works, 1 Gratt. 364.
    
    
      
      Action of Debt — Averments.—To the point that, in an action of' debt, nonpayment of the debt de-mandea must be averred, the principal case Is cited in Reynolds v. Hurst, 18 W. Va. 651: foot-note to Strange v. Floyd, 9 Qratt. 474. containing- an excerpt from Reynolds v. Hurst, 18 W. Va. 651; Moundsville B. & W. Ry. Oo. y. Wilson. 52 W. Va. 647, 44 S. E. Rep. 169.
      See further, monographic note on 'Debt, The Action of*’ appended to Davis v. Mead, 13 (trait. 118.
    
    
      
      The Pbesident. absent.
    
   JUDGF GRFFN,

delivered his opinion.

The plaintiff has construed the meaning of the instrument of writing on which he sues, to be, that if William Cobbs was not found guilty of murder in the first degree, and sentenced for that crime before the time appointed for the payment of the money, he was thereupon entitled to the $200; and has accordingly averred in his declaration, that William Cobbs was not sentenced for murder in the first degree. The defendant construed it to mean, that the plaintiff was not entitled to the money, until William Cobbs was acquitted of murder in the first degree; and has *accordingly pleaded, that Willi-am Cobbs had never been arraigned, tried, and acquitted of murder in the first degree, and that the prosecution is still depending. The demurrer to this plea fairly presents the question, which of those constructions is proper? If the defendant’s construction is proper, the declaration is defective, in not averring, that William Cobbs was acquitted of murder in the first degree.

The literal terms of the stipulation, favor the plaintiff’s construction. A stipulation to pay on a particular day, unless some event shall happen, which, in its nature, may happen either before or after that day, seems to me necessarily to imply, that the money is to be paid, if the event does not happen before that day. Every contract ought to be construed so as to give it effect, according to the real intent of the parties, to be collected from all the terms of the agreement; and when the expressions are equivocal, such intent gathered from the whole of the instrument, must determine the meaning of such expressions. If the terms conflict, or are so inconsistent that the intent of the parties cannot be ascertained, the contract may be nugatory, by reason of such uncertainty; a consequence which should be avoided, if possible. The parties must have intended something by their agreement. I am not, however, apprised that it has ever been held, that a construction can be put upon a contract, directly contradicting all of its express stipulations.

The construction put upon the contract under consideration, by the defendant, would contradict all its stipulations. The contract stipulates for the payment of the money, on a specified day. By the defendant’s construction, the money would never be payable, if the party were never acquitted or convicted, in consequence of his death or flight; and even in case of his acquittal after the day appointed for payment, not until such acquittal. The contract is, that the money shall be paid, if the accused was not convicted. The defendant’s construction is, that it was to be *paid, if he was acquitted. These two conditions are' directly contradictory; for the accused might die or fly the country, and never return; in neither of which cases, could he be acquitted, although, in the latter case, the prosecution might be continued as long as the prosecutor chose to continue it. In both these cases, he could never be convicted. So that, if it depended upon his acquittal, the money would never be payable; but if it depended upon his not being convicted, it would be payable certainly at some time. Nor is it at all improbable, that the parties meant precisely wihat they said. An attorney might well be supposed to contract for his services, upon the terms that if the accused was tried and convicted before a given day, he would receive nothing for his services; but if tried and not convicted before that day, or not convicted, for any other cause before that day, that a compensation should be paid for his attention to the case; and that, for the express purpose of guarding against the loss of his compensation, not by his own default, but by the death or flight of the accused. To give the effect to the contract, contended for by the plaintiff,. it is only necessary to supply one term in the contract, not contradicting any of its stipulations, but implied from them. The defendant’s construction, would require that all the stipulations of the contract should be precisely reversed.

Suppose the attorney had undertaken upon the face of the agreement to acquit the accused, and the defendant had undertaken, in consideration of the performance of the plaintiff’s covenant, to pay $300 on the 13th of September, 1819. There would then have been stronger ground, than in the present case, for the defendant to contend, that the true construction of the contract was, that the money was to be paid on the 13th of September, 1819, if the accused was acquitted by that time, or if not, then when he was acquitted, and not until then; and to plead with effect, that he was not acquitted. But such a plea, in such a case, would not avail him; and he would be left to his remedy against *the plaintiff, upon his covenant, if he did not acquit him. And even in that case, the plaintiff would not be liable, in case of the death or flight of the accused; since the failure of the plaintiff to perform his covenant, would be without his default. Thus in Sir Thomas Wroth’s Case, Vin. Abr. “Condition,” B. 6, pi. 11, § 3, an annuity being granted to an attorney or physician, for his life, pro consilio impendendo, if the grantor dies, this does not determine the annuity; for the grantee is disabled from performing his covenant, without his default, and by the act of God; and it is a familiar rule laid down ' by Holt, Chief Justice, in Thorp v. Thorp, 13 Mod. 461, and continually admitted since, that if the thing which is the consideration of an agreement to pay money, on a given day, may happen after that day, the happening or performance of the thing is not a condition precedent to the right to demand payment of the money, on the appointed day; and when a covenant could not, in its nature, be performed by the plaintiff, before the day appointed for the payment of the money, and the payment was to be made in consideration of the performance of the covenant, and the covenant was broken before the day of payment, it was held not to bar the action for the money. Because the covenant was not originally a condition precedent to the payment of the money. Hunlocke v. Blacklowe, 3 Saund. 155. The covenant in that case was in the negative, and could not be performed during the plaintiff’s life; and the defendant was left to his remedy upon the plaintiff’s covenant.

In the case at bar, although the plaintiff has made no covenant, on his part, on the face of the paper which he sues upon, yet he probably undertook to render services in some way, in the defence of William Cobbs, which were the consideration of the defendant’s undertaking to him. Whatever this undertaking was, although by parol, if he has not performed it, or been properly excused from peforming it, he is liable to the defendant in damages.

*The objection to the declaration, that it fails to charge that the defendant has not paid the money, I think is not well founded. In all the cases referred to, there was a total want of averment of non-payment to some one who was, at some time, entitled to receive the money. But in this case, the declaration alledges that the defendant “the aforesaid several sums, hath and does refuse to pay.” This averment, although not full and formal, is yet not so defective as that the Court cannot give a judgment on this verdict, according to the very right of the case; and is therefore, not objectionable, on a general demurrer.

I am of opinion, that the judgment should be affirmed.

The other Judges concurred, and the judgment was affirmed.  