
    
      North, vs. Shrock.
    June 24.
    Error to the Fayette circuit; Thomas M. Hickey, Judge.
    
      Covenants, construction of.
    
    Covenant -
    Case 71,
   Chief Justice Robertson

delivered the opinion of the court.

On the 25th of- August 1828, William North and John Shrock entered into an article of agreement, whereby the latter covenanted “to furnish brick and materials and build the walls of a certain house,” which the former designed to have built in Lexington, and to lay the old bricks which were in North’s “kitchen and other back buildings,” (“North having the old brick cleaned and made ready for laying;”) and to complete the “job by the 30th of October, (1 828,) provided said North gets thefoundation S/c.ready by the 15th of September,{1828) and no delay for want of timber;” and North, on his part, covenanted to let Shrock have “the use of a sufficient quantity of sheeting plank for scaffolding;” and to pay him a stipulated price for the work, part in property and part in money during the progress of the work, and at specified times after its completion.

On the 1st of Sept. 1828, Shrock endorsed on the covenant the following agreement, “I am willing to give W. North to lay the rock foundation and prepare forme to commence laying the brick by the 25th of Sept, instead of the 20th, as the contract between us specified ; the contract is still to be fulfilled by the time.'1'’

On the 3d of March, 1829, North brought this suit against Shrock on the foregoing covenant. The court sustained a demurrer to the declaration, and thereupon rendered judgment for Shrock.

Covenant SJOR9 trued.

The declaration contains three counts, each of which sets out the covenant truly. The first alleges for breach; that Shrock had not commenced and still refused to commence the work, although the foundation was ready on the 25th of Sept. 1 828, and North was, and still continued to he, ready f® perform every thing covenanted to be done on ids part, and had, on the 4th of Oct. 1828, notified Shrock thereof, and requested him to commence the work.

The breach in the second count is substantially the same, with the additional averment, that the foundation and old, brick were ready on the 25th of Sept. 1828, and that Shrock then refused to commence the work.

The breach in the 3d count is, that Shrock refused to commence the work on the 25ih of Sept, although the foundation snd timbers were then, in port, ready, (so that he. might have commenced without obstruction,) and were completely ready on the 28ib of the same month; and also that although he was notified on the 4th of October that the foundation and timber were ready, and was offered an extension of the lime for completing the work, until the Oils of November 1828, he had refused «..id continued to refuse to commence the building of the walls.

The counts are unnecessarily prolix and tautological, but each of them contains a cause of action.

The covenant must be construed reasonably according to the subject matter, and Ihe circumstances attending it. It was doubtless the understanding of the parties that the walls wore to be built during the fall of the year 1828; hot they did not designate any particular time for commencing, nor eyen for finishing the brick work, unless the foundation and other preparations necessary for commencing the laying of the brick should be ready as soon as the 9.olh of Sept. 1828; in the event of such readiness, Shrock was bound to finish the walls by the SOIh of Oct. 1 828. But a failure by North to complete the foundation and provide other things punctilliously by the 25th, surely did not absolve Shrock from his covenant to build the walls. He was still hound to do the work, if preparation had been made for him in a reasonable time and manner, and he had been notified thereof.

If either of the counts be tree Shrock has broken his covenant by refusing to commence the work.

The 2d count is sufficient even if Shrock was not bound to build the walls unless the ‘"foundation &c.” had been ready as soon as the 25lh of Sept. But the other counts are also good. Shrock agreed to work into the walls some of North’s old brick, if North would clean them and have them ready. But if North never prepared the old brick, but was, in other respects read'/, arid had prepared the foundation, Shrock was bound to hui’d the walls with his own brick: the .'tipuJaiion in reláfica to the cid brick was made for the benefit of No'-th; Shrock undertook to furnish all the brick at stipulated pi-ices, but agreed to lay some of North’s old brick, provided they should be prepared for him. It was not necessary, therefore, to aver that the old brick had been prepared. Nor was it indispensable that the rock foundation should have been completed as soon as the 25th of Sept, if, as akedged, it was ready on the 28th, and Shrock had reasonable notice thereof, he ought to have proceeded, without delay, to build the brick walls. If the foundation was not completed until after the 25th, Shrock would not have been bound to have the wails finished as soon as the 30th of Oct. nor have been liable for any of the consequences incidental to North’s delay, or necessarily resulting from his failure to prepare for (hocommencement of the brick work as roon as the 25ib. Shrock covenanted to build the walls without regard to any particular day for commencing the work:,but he undertook also to complete the work, provided the foundation, &e. should be ready for him to commence as soon as the 25th of Sept, and he should not after-wards be delayed by North. The only consequence of failing to have the foundation ready on the 25th, was, that Shrock was thereby released from his covenant to finish tne work as soon as the 30th of Oct. but his obligation to do the work within a reasonable time was not thereby released.

DllSENTj

Wicklijfe and Wooley, for plaintiff; Chinn and Hog-gin, for defendant.

Judgment reversed and cause remanded with instructions to overrule the demurrer to the declaration.

Judge Underwood

dissenting, delivered his own opinion . as follows'.

I concur in the opinion of the majority of the court that the demurrer to the declaration ought to have been overruled, because I think the second count contains every averment necessary to shew the plaintiff’s right to recover upon the covenant, bull dissent from so much of the opinion as gives a'construction to the contract and its legal effect. As to the validity of the 1st and 3rd counts, I give no opinion, further than fo say I am inclined to think the first good and the third clearly bad. By the agreement between the parties, Shrock was to furnish certain materials and to build the wall of a brick house for North in Lexington. Shrock also “agreed to lay the old brick which said North has in the kitchen and other bark buildings, said North having the. old brick cleaned and made ready for laying.” The covenant in respect to the time when the work was to be completed uses this language, “said Shrock agrees to do all the above work in a good workman like manner, and to have the same completed by the 30th day of October next, provided said North gets the foundation, &c. ready by the 15 day of September next, and no delay for want of timber.; said Shrock is to have the use of a sufficient quantity of sheeting plank for scaffolding.” By a separate endorsement on the contract, Shrock extended the time for laying the foundation, &c. to the 25th of September, and agreed, if North was ready for him by that time that the work should be completed by. the stipulated day, to-wit, 30th of October. I think that the true meaning of the parties as evidenced by the contract was this, North agreed to have the foundation ready, and also to have the old brick in the kitchen and back building ready and cleaned for laying, and likewise to furnish sheeting plank for scaffolding by the 25th of Sept, and if these things were done, then Shrock on bis part, agreed to build the house and complete it by the 30th of October. I look upon the preperatlon to be made by North as a precedent condition to the performance on the part of Shrock, and if North not perform. I think no recovery can be had on the contract. The opinion of my brethren holds Shrock liable, although North never prepared the brick in the kitchen and back buildings. Now it is clear to my mind, that the parties intended that those brick should constitute a part of the walls of the house which Shrock was to put up, and without them he might not be able to complete the work in time.— Shrock may have had brick enough of his own ready made, which in addition to the brick in the kitchen &c. would be sufficient to complete the job. Without the brick in the kitchen he may be compelled to make others or to purchase. He may thus be delayed and rendered unable to comply with his contract in finishing the work by the time stipulated. I cannot.impose such a burden upon him, contrary, as I think, to the plain meaning of his contract. The opinion says that-it is not indispensable that North' should have the foundation ready by the 25th Sept., and adds, that if it was ready on the 2&th and Shrock had reasonable notice thereof, he ought to have proceeded, &c.-I think otherwise. If North might exact performance by having the foundation ready on the’ 28th, might he not insist on it, by having the foundation ready on the 30th of Sept, or even the 15th of October. It seems to me, if he is permitted to depart from the day stipulated, we are at sea without rudder or compass. But the consequence of tolerating such a departure, is, to make Shrock violate bis covenant whether he will or not, for he may be rendered unable thereby to complete the building by the time stipulated. This seems to be provided for in' the opinion, and Shrock is excused because of North’s’ failure to comply with his part of the contract in time. Thus the writing which should govern is rendered inoperative, and we are drawn olF into an inquiry, how long shall Shrock have to finish the buih ding after the.30th of October, if North is not ready for him to begin on the 25th of September? It seems to me the written contract isdeslroyed by such a construction. But the greatest evil is this, Shrock, a' mechanic,- has engaged to do a job of work- by the-30th of October, provided Lis employer does certain things. The employer foils, and insists that he has the right tounake Shrock work for him after the 30th of October, thereby interfering with contracts which Shrock may have made with other persons, promising to be engaged for (hem at that time, and thus producing confusion in all the business and engagements of Shrock, and involving him into violations of his contracts made with others.

Dissent.-

Í do not think the covenant will tolerate this, and therefore, Í have deemed it proper to express my dissent.  