
    
      G. W. Killian vs. Z. P. Herndon.
    
    In an action of covenant to recover the price of building a house, which defendant had covenanted to pay when the house should be finished and completed in every particular, the plaintiff is not bound to shew that he had hung every window shutter right, and that he had planed to exactness eveiy mantel; he cannot be non-suited, if he shews, generally, that the work was done, or that the defendant expressed himself satisfied therewith; or that he was satisfied with a part of the work, and the defect of the part he was dissatisfied with, either arose from the defect of the material, which the defendant was bound to furnish, or that the plaintiff was not bound to do that which was claimed.
    "Where payments are made on a debt before it is due, and before it begins to bear interest, the party malting the payments is not, without some stipulation to that effect, entitled to interest omhis payments up to the time the debt begins to bear interest.
    
      Before Whitner, J., at Union, Spring Term, 1851.
    This case — covenant for building a house — first came before the Court on special demurrer to the declaration, (see ante p. 196.) By the terms of the agreement, defendant was to furnish the materials, and plaintiff to do the work; and the following provisions, among others, were contained in the instrument:
    “ The two windows within the portico to have pannels underneath to open and shut, so as to be used as doors.
    “ Every fire place, below and above, is to have a mantel of the latest and best style, such as the said Herndon may direct
    “ And the said Killian is to do all the work of every kind and description, and if any thing is omitted to be mentioned in this agreement, and not provided for, which is necessary -to perfect and complete the building in all of its parts, it is expressly understood and agreed, that the same is to be done in like manner with those things which are expressly provided for by this agreement ; and every part and parcel of said building, and all things necessary to complete the same in every particular, is to be done in a perfect, strong and workmanlike manner, in the style before mentioned : and when the said house is so finished and completed in all things, then upon the receipt of the same, by the said Herndon, and he being satisfied that the said house is built and finished according to this contract, and all that is expressed or implied in- the same,- then the said Herndon is to pay the said Killian twenty-one hundred and fifty dollars.”
    Plaintiff proved that he had finished the house; that defendant had taken possession of it, and had been residing in it for about two years before the trial; that he was present frequently when the work was progressing, and when the windows were changed, and that, on one occasion, he, had said that he did not object to the'carpenter’s work.
    In behalf of defendant, principally from the cross-examination of Dim, the plaintiff’s witness, and' afterwards, in some respects, more fully from the testimony of a witness examined by defendant, it appeared that there was some defect about the outside doors — that in a beating rain the water run under them ; that the mantel pieces were not neatly finished — one shewed the marks of the plane — and that during the progress of the work, defendant objected to the style of the mantel • pieces, and told plaintiff they would not do; that some of the window shutters did not fit well — that the two front windows, within the portico, did not open to the floor, and that the. shutters thereof were so hung as, when opened, to strike against the banistering, which bruised the shutters; that one hand rail was too weak — was easily shaken ; that some of the plastering had. blistered, and pieces had fallen off, but that, the witness thought, was owing to a defect in the lime ; that the columns were rough casted, and in some places pieces had fallen off; that the plastering of the front portico was stained, as though by a leak ; that there was some defect about the banistering of the upper portico; that the outside carpet strips were not put down well; that defendant had .procured, at much cost, hewn stone -for the hearths, which had not been laid down — that temporary hearths of tiles were used, which were uneven and in bad condition, and-that defendant had requested plaintiff to have the hearths laid with the stone he had provided ; and that defendant had objected to settling for the work, because the house had not been finished .according to contract. Defendant also proved that he had paid the plaintiff, at different times, sums of money amounting in the whole to $1565. Some of the payments were made before the work was finished.
    When the plaintiff closed, the defendant moved for a nonsuit, on the ground that performance had not been proved ; the motion was refused.
    “ In submitting the case to the jury,” says his Honor, in his report, “ I instructed them that the plaintiff, by his pleading as well as his contract, was bound to prove performance of the agreement on his part, before he could claim to recover; that they might look to the direct proof offered, as well as the declarations and conduct of defendant, in entering upon the enjoyment of the premises, as well as to the grounds of objection made, whether derived from plaintiff’s own witness, from the testimony on part of defendant, or from admissions of plaintiff as to work remaining to be done. If plaintiff had not performed his contract substantially, the verdict should be for defendant, and postpone the plaintiff till he had complied. If satisfied, on all the points brought to their view, that plaintiff was entitled to recover, that he should be allowed interest on his demand from the completion of his contract; deducting defendant’s payments. Those made before plaintiff’s right to demand payment, as so much from the principal sum, without interest. The jury returned a verdict for plaintiff for $585, and interest.”
    The defendant appealed, and now moved for a nonsuit, on the grounds:
    1st. Because the plaintiff having set out the agreement, and averred performance of the same, and the defendant taken issue thereon, was bound to prove that he had so performed the agreement. Whereas, the proof offered by him shews that the two windows in the lower story of the house, opening on the west or front portico, are not finished according to the agreement between the plaintiff and defendant.
    2d. Because the proof came out on the part of the plaintiff, that he had not laid the hearths according to the agreement, and, therefore, he has failed to perform his undertaking, and is not entitled to recover, the materials being ready prepared for that purpose.
    3d. Because it was incumbent on the part of the plaintiff, to prove that he performed every part of the agreement, on his part, as he has alleged in his declaration he has done, but which he failed to do, and that the work was done in workmanlike manner, in the latest and best style, which he failed to do.
    4th. Because the plaintiff was bound to prove that he had finished the work on the house, “ in every particular,” before the defendant was bound to pay any thing, and that the defendant was satisfied or dissatisfied.
    And failing in that motion, then he moved for a new trial, on the grounds:
    1st. Because the Court should have charged the jury, that if in August, 1849, after the defendant had been in possession of the house, he objected, amongst other things, to pay for the house, on the ground that the hearths were not laid, and that plaintiff had then agreed to lay the hearths, and has failed to do so, he was not entitled to recover, as this was a part of his agreement, and the house would not be finished without.
    2d. Because the defendant was entitled to interest on his receipts up to the time the jury found interest against him.
    
      Bobo, Thomson, for the motion.
    
      Dawkins, contra.
   Curia, per

O’Neall, J.

The covenant to build the defendant’s house was certainly prepared with great care •, it has descended to the most minute particulars ; and if the plaintiff has not complied with it, in every respect, it may be, that the defendant would be entitled to his motion for nonsuit. But when I say that, I do not mean to say that the plaintiff is bound to prove that he has hung every window shutter right, and planed to exactness every mantel. It is sufficient, on a motion for nonsuit, if the plaintiff has shewn generally that the work was done, or that the defendant expressed himself satisfied therewith; or that he was satisfied with a part of the work, and the defect of the part he was dissatisfied with, either arose from the defect of the material, which the defendant was bound to. furnish, or that the plaintiff was not bound to'do that which was claimed.

I have examined into- the defendant’s objections here, and it seems to me that they are covered by one or other of these propositions.

It was proved by Dun, that the defendant said to him, he did not object to the carpenter’s work. This at once, so far as the motion for nonsuit was concerned, swept away the whole of the defendant’s objections about the windows mentioned in the lower story, the style of the work, the manner of hanging the window shutters, so as to open against the railing of the porticoes, the bad fitting of the doors, the execution of the mantel pieces, and various small objections, which might be critically taken to any building.

The objection to the plastering is answered by Dun’s testimony, which attributed the defect to the lime which the plaintiff furnished.

The hearths are not mentioned at all in the contract; and it may be, that the plaintiff was not ’ at all bound to lay them. That I would say must be now concluded, when the jury have so found. For it is considered, I think, a settled rule with bricklayers, that they are not bound to lay the hearths under the contract to build chimneys.

These remarks sufficiently shew that the defendant is not entitled to a nonsuit, and that it was very properly refused by the Judge below. Failing in that, he has no cause to complain of the verdict. For he failed to shew any damage resulting to him from what he supposed to be plaintiff’s failure to perform his contract.

It appears from the report of the Judge, that he not only submitted this matter to the jury, but also the precedent matter, the performance of the contract. As to interest on the defendant’s payments, that cannot be allowed. They were to be deducted, when made, and if the plaintiff’s contract was then bearing interest, they of course diminished the future interest by paying the past interest, and then diminishing the interest-bearing fund. If paid before it was due, then they are regarded as payments in advance, made by the liberality of the defendant ; but he is not entitled to charge interest upon them, without some stipulation to that eifect.

The motion for a nonsuit, or new trial, is dismissed.

Evans, Withers and Whitner, JJ., concurred.

Frost, J., absent at the argument.

Motion dismissed.  