
    Bream v. Marsh.
    November, 1832.
    (Absent Cabell, J.)
    Dependent Covenants-When Construed as Independent. — Where reciprocal covenants have been contracted, and one party has partially performed the covenants on his part, and has no other remedy for compensation therefor but by action on the covenant, there, whatever be the form of the contract, and even though the covenants are expressly dependent covenants in form, and though they are pleaded as dependent covenants, yet they shall be held independent covenants and the plaintiff shall recover compensation for his part performance.
    This was an action of covenant, brought by Marsh against Bream, in the circuit court of Kanawha.
    The declaration alleged, that, by sealed articles of agreement between the defendant Bream and the plaintiff Marsh, Bream covenanted with Marsh, in consideration of the covenants therein contained to be performed by Marsh, that, Bream being the owner of a salt well and two furnaces in Kanawha, at which furnaces Marsh was to manufacture salt, Marsh should receive one or both the furnaces, at his election, *in the then state of the same, with the machinery, pumps and appendages, and possession thereof should be given to him on the monday next after the date of the articles; and Marsh covenanted, that he would go on, immediately afterwards, to manufacture the quantity of 14,000 bushels of salt; for which Bream covenanted to pay Marsh after the rate of ten cents per bushel loose, for the whole quantity manufactured, in consideration of Marsh furnishing the whole of the fuel to be used at the furnaces, which he covenanted to furnish; and Bream alsb covenanted’to let Marsh have one half of all the salt manufactured at the furnaces, in addition to ten cents per bushel on the whole quantity, which last was to be in lieu of all the expenses which Marsh undertook to defray; and it was further covenanted, that, in case the water in the well should fail in quantity or quality, so as to be unfit for the manufacture of salt in the usual way, Bream would, at his own expense, bore deeper in the well, until water of the ordinary quality of the salt waters on the river Kanawha, should be obtained; and that Bream would furnish the usual quantity of metal for the furnaces, which, with the metal, should be restored to ’him by Marsh so soon as the quantity of 14,000 bushels of salt should be manufactured, but in all events by the 1st day of January next after the date of the articles. And Marsh averred, that he performed all the covenants in the articles contained on his part to be performed, until the water in the well intirely failed both in quantity and quality so as to be unfit for the manufacture of salt; and that Bream had failed to perform the covenants on his part, and had broken the same, in this, that, after Marsh had manufactured 8000 bushels of salt, the water in the well became insufficient, both in quantity and quality, and unfit for the manufacture of salt, and Bream failed and refused, though requested by Marsh, to bore the well deeper at his own expense, — and Bream also refused, and still refused, to pay Marsh ten cents per bushel for the quantity of 8000 bushels, actually manufactured before the failure of the water in the *well, — and Bream also failed and refused to allow Marsh the half of the 8000 bushels of salt so manufactured &c.
    Bream pleaded performance of the covenants in the declaration mentioned; and on this plea an issue was made up.
    At the trial, Bream filed a bill of exceptions to an opinion of the court, in which it was stated, that he moved the court to instruct the jury, that, under the pleadings in the case, unless the1 jury should be satisfied from the evidence, that, aftep the making of the salt proved to have been actually made (namety, 7697 bushels), the water in the well failed in quantity or quality, according to th,e true meaning of the covenant in that particular, and that thereupon Bream failed and refused to bore the well deeper according to the covenant, Marsh was not entitled to recover any thing for the salt which was actually made. But the court refused to give such instruction, and instructed the jury, on the contrary, that the covenant in relation to the quantity of salt to be made, and the covenant in relation to the price per bushel to be paid by Bream for making the same, were independent covena-nts; and that Marsh, in order to recover the price of ten cents per bushel for the quantity really made, was not bound to prove, either that he had made the whole quantity of 14,000 bushels in the covenant mentioned, or that the water had failed and that Bream had failed and refused to bore &c. as alleged in the declaration : to which opinion Bream excepted. (The covenant itself, on which the action was founded, was nowise set out in the record).
    There was a verdict for Marsh, for 685 dollars 27 cents, with interest &c. But Marsh entered a release of 97 dollars 83 cents (it did not appear, why) and the coart gave him judgment for only S87 dollars 44 cents, with interest &c. Bream appealed to this court.
    Briggs and Nicholas, for the appellant,
    premised, that the terms and the intent of the covenants, on both sides, could only be ascertained from the declaration; and they insisted, that however these covenants might have been in fact, dependent 'x'or independent, the declaration pleaded them as dependent covenants. It alleged, that Bream covenanted to do what he undertook to do, in consideration of the covenants to be performed on the part of Marsh; and it averred, that Marsh performed all the covenants on his part, until the water in the well failed both in quantity and quality, and that Bream failed and refused to bore the well deeper; which is only an excuse for his own failure of full performance of the precedent covenant on his part; and thus Marsh shewed and pleaded, that the covenants, according to his own understanding, meaning and intention, were dependent covenants. It could not, with any propriety, be held that the intent of the covenants was that they should be independent, when the declaration pleaded them as dependent; yet the circuit court told the jury, in direct opposition to the case as stated in the declaration, that they were independent covenants. Marsh was bound to prove his case as laid in the declaration; Bristow v. Wright, 2 Doug. 665. He was bound to prove, that he had proceeded to perform the covenant on his part, until the water in the well had failed in quantity or in quality, that being the only excuse he alleged for his default of full performance of the covenants on his part. The circuit court held that he was entitled to recover, without proving his case as he had pleaded it.
    Johnson, for the appellee,
    said, that covenants were to be construed to be dependent or independent covenants, according to the intention of the parties, and the good sense of the case; and technical words should give way to such intention ; that a covenant going only to part of the consideration on both sides, a breach of which might be compensated in damages, was an independent covenant; and that, even in the case of dependent covenants, when a party has performed a part, for whicn he can have no other remedy but by action on the covenant, unless the plea goes to the whole consideration, there, from the necessity of the case, and because the defendant has his remedy for the failure of the plaintiff in part, an action may be maintained in the same ‘manner, as if the covenants were independent. 1 Wms. Saund. 320, note 4, and the authorities there collected. Lewis v. Weldon, 3 Rand. 71, 81; Seers v. Rowler, 3 Johns. Rep. 272. As to the argument deduced from the circumstance of the covenants being stated in the declaration as dependent covenants, he referred to Havens v. Bush, 3 Johns. Rep. 387. Marsh must be entitled to recover his ten cents per bushel for the salt he actually manufactured, though it fell some thousands of bushels short of the quantity he stipulated to manufacture, and though it were owing to his own fault that he did not complete the stipulated quantity; otherwise, if he had manufactured 13,999 bushels, he would have been entitled to no compensation whatever, because he had not manufactured the whole quantity of 14,000 bushels. This consideration, he said, was decisive of the case; Lewis v. Weldon, before cited; and Boone v. Lyre, 1 H. Blacks. 273, in notes.
    
      
      Covenants — How Construed. — Covenants and agreements are construed according to the intention of the parties, and the good sense of the case. Though in form they may be dependent, yet, to prevent injustice, they will be construed as independent, and vice versa. Todd v. Summers, 2 Gratt. 169; Osborne v. Cabell, 77 Va. 466; each case citing Bream v. Marsh, 4 Leigh 21, as its authority. The principal case was also cited with approval in Tait v. Tait, 6 Leigh 165.
      See generally, monographic note on "Covenants” appended to Todd v. Summers, 2 Gratt. 169.
    
   CARR, J.

The question is, whether the instruction given by the circuit court to the jury, upon the trial, was correct? It is laid down, that covenants are to be considered dependent or independent, according to the intention of the parties, and the good sense of the case, and technical words should give way to such intention. The authorities on this subject are collected, and the principles deducible from them clearly stated, by sergeant Williams, 1 Saund. 320, note 4. Looking to the good sense of the case, and the meaning of the parties, what feature is there in the contract that would lead to the conclusion, that the plaintiff should receive nothing for his labour and expense, unless he made the whole 14,000 bushels, or shewed a failure of the water, and a failure of the defendant to bore deeper? Justice and good sense would seem to require, that the redress given for a breach of the covenant, should be measured by the injury resulting from that breach : but if these were held dependent covenants, this principle would be reversed; and the nearer the plaintiff had approached to a full performance, *the smaller the injury he committed, the greater would be the redress to the defendant. Thus, if the plaintiff had made 13,000-bushels, the loss resulting to the defendant by the plaintiff’s breach would have been trifling, and the defendant would gain the whole quantity made, without paying a cent. To be sure, if parties make such contracts, they must abide by them; but this on the ground of positive contract, not of justice. But here, there is nothing in the covenant (testing it by the rules deduced from the cases) that would, either upon the ground of the intention of the parties, of the good sense of the case, make these dependent covenants. The plaintiff was to have “after the rate often cents per bushel, for the whole quantity manufactured:” surely, this does not mean that unless he manufactures 14,000 bushels, he shall have nothing; that would not be after the rate of ten cents per bushel, for the quantity made. He made 7697 bushels; give him his ten cents upon that; and if he has broken his covenant in not making 14,000 bushels, let the defendant sue him, and recover the exact damage he has sustained by the breach. This seems to me the good sense of the case, and the meaning ot the parties. I think the judgment should be affirmed.

BROOKE, J., concurred.

TUCKER, P.

This case turns upon the question, whether the covenants of the parties respectively, in the deed declaren on, are independent or dependent covenants? The circuit court was of opinion, upon the trial, that they were of the former character.

It was justly said at the bar, in the language of the books, that covenants are construed to be dependent or independent, according to the intention of the parties and the good sense of the case; and technical words should give way to such intention. If the justice of the case requires it, though the words of a covenant are dependent in form, it shall yet be construed to be independent. This was the precise case *of Boone v. Eyre. There A. sold a tract of land and a number of negroes to B. and covenanted that he had good title and was possessed of the negroes. B. covenanted, that, A. well and truly performing all things on his part, he, B., would pay a certain annuity. In an action for the annuity, B. pleaded th^t A. was not legally possessed of the negroes. But though no language could be stronger for the creation of a dependent covenant, yet the plea was held ill; “for, if such plea were allowed, the fact that any one negro was not the property of A. would, on the same principle, bar the action for the price of the land, or, the rest of the slaves, thougn B. was enjoying the profit of all but one.” To avoid this gross injustice, the covenant was construed to be independent, against the express form of the words. Hence, in these cases, the first and most appropriate inquiry seems to be, what does the justice of the case require between the parties?

In the case before us, Bream was the proprietor of certain salt works; Marsh was a manufacturer of salt. Bream let his works to Marsh, put him in possession of them, and bound himself, if the water failed, to bore deeper for more. Marsh agreed to go on to manufacture 14,000 bushels of salt; to pay all expenses and furnish all the fuel; and to return the salt works as soon as the salt was manufactured, but at all events by the succeeding new year’s day. And Bream agreed to pay Marsh ten cents per bushel, for the whole quantity manufactured, and to let him have one half of all the salt manufactured, besides. These were the simple terms of this agreement. Suppose it had been fully complied with, and the 14,000 bushels of salt made. What would Marsh the manufacturer have got? 7000 bushels of salt, and ten cents on each bushel manufactured besides,, equal to 1400 dollars. What would Bream, the proprietor, have been entitled to? To 7000 bushels of salt, minus ten cents per bushel on the whole quantity manufactured, that is 1400 dollars. And what has he got, as appears by this record under the course of proceeding of which he complains? *He has got 7697 bushels of salt, minus 587 dollars 44 cents, the amount of the jucjgment of the court. I am hard of belief, that there can be any error to his prejudice, in a case which has redounded so eminently to his advantage.

Let us next see what, in fairness, the parties ought respectively to have had under the real state of things. Only 7697 bushels of salt have been manufactured, and we are bound to take it upon this record, that the wells did not fail. Does it follow, because the manufacturer has not made the full amount of 14,000 bushels which he might have made, that he is to have nothing? Is the contract so entire that it can admit of no apportionment, and that the plaintiff must prove he manufactured every bushel before he can shew himself entitled to recover even the ten cents per bushel which were allowed to cover expenses? The affirmative is the answer given to these inquiries in the argument of the counsel for the appellant. If so, the consequence (as Mr. Johnson justly said) is inevitable, that if he had manufactured 13,999 bushels, he would nevertheless not have been entitled to one cent for the labours of a year, and the heavy expenses of such an establishment. Lord Mansfield did not think thus, when overruling the demurrer in Boone v. Eyre; he said, “if this were allowed, any one negro not being the property of the plaintiff, would bar the action.” And so 1 say here, if this pretension be allowed, the failure by a single bushel of salt, would bar the plaintiff’s action for the whole compensation. This is not reason ; neither is it law.

It is said by a learned author, that the spirit of the common law is opposed to apportionment of contracts. See 2 Evans’s Pothier, 40. This certainly was anciently strictly true; and it is still true, I imagine, as to all entire contracts, which do not admit of apportionment, and indeed as to many others. In contracts for service between master and servant, the principle seems often very rigorously to prevail; as in the case of a clerk who quitted his employer within *the year for which he engaged to serve — he was held entitled to nothing. Pagani v. Gandolfi, and Huttman v. Bulnois, 2 Carr & Payne, 370, 510; 12 Com. Law Rep. 177, 239. So too, as to ordinary servants; Spain v. Arnott, 2 Stark. Rep. 256; 3 Com. Law Rep. 339. See also Cutter v. Powell, 6 T. R. 320, though that case can only be sustained, I think, on the ground, principally relied on, of extra wages. But, notwithstanding these and other cases, which rigorously deny compensation unless there is intire performance, there can be no doubt, that where the subject is divisible, where the failure as to part can be fairly and accurately compensated by an apportionment of the consideration, the law permits, as justice certainly requires, that it should be done. 'In such cases the parties have their cross actions; as here, — ■ if Bream had not really received full as much as under any circumstances he would have been entitled to, he might have his action against Marsh for the damages. With these views of the case, I do not think it necessary to go into a comparison of it with the strongly analogous case of Lewis v. Weldon. It is proper, however, to remark, that the circuit court was not only right in instructing the jury, that these covenants were to be considered independent, but it was extremely guarded in saying, that the plaintiff was not bound to prove the making of 14,000 bushels of salt, in order to entitle him to recover the ten cents per bushel. There is no intimation, that he was entitled to recover any part of the salt itself; and accordingly he seems to have been allowed none. I certainly think he was entitled to ail above 7000 bushels. Nor do I see why the verdict, which I presume was for the 10 cents per bushel, was reduced. Some reason appeared, I suppose, on the trial. Be this as it may, these things were in favor of the appellant, and he cannot complain of them.

Judgment affirmed.  