
    Davis & Lehre vs. T. Gourdin.
    Defendant leased to plaintiffs Nelson's Ferry, and two hundred acres of landt and covenanted with plaintiffs to furnish one half of the laborers necessary to erect a bridge over a neighboring creelc, and' to assist in opening a new road to the Ferry. From the nature of the covenant, it was held that the plaintiffs were the actors, and that thedefendantwasnotboundto move in the matter, until he had notice that the plaintiffs were ready to engage in it, nor was he bound to contribute to the expenses until (hey were incurred; the benefit being more immediate to the plaintiffs.
    Tried at Charleston, in May Term, 1824, before Mr. Justice Huger.
    
    This was an action of covenant. In October, 1816, an agreement was entered into by Gourdin of the one part, and Davis and Lehre of the other part, whereby Gourdin leased to Davis and Lehre Nelson’s ferry and 200 acres of land for 800 dollars per annum. In a second and independent co--venant in the same lease, Gourdin agreed to furnish half the labourers necessary to erect a bridge across the Eutaw creek at its entrance into Santee; and farther to aid and assist in opening a road of about two miles from the mouth of the said Eutaw creek; the object being that the said road and bridge be at the joint expense of the two contracting parties. The plaintiffs complained of a breach of this covenant on the part: of the defendant.
    The pleadings made two questions:
    1st. Was there a breach on the part of defendant? and!
    
      2nd. If there was; to what extent had the plaintiffs been injured?
    It appeared from the e\idence, that the bridge and road in question were of considerable importance to Nelson’s :'stry. The benefit to accrue from them was estimated at Norn two to three hundred dollars per annum, and the said bridge and road had not been made. The road from Charleston to Nelson’s ferry leaves the Congaree road, not many miles from the ferry, and takes a more northerly direction,, The road contemplated would run from the ferry, in ” south west direction, until it intersected the Congaree road. It is often difficult, and sometimes impossible, to cross the Santee at Nelson’s ferry, from freshets. Could travellers re™ turn into the Congaree by the route contemplated in the agreement, and not be obliged to retrace their steps on the present road, it was thought certain that many would cross at Nelson’s, who are now deterred by the necessity of returning on the present road, should the ferry be difficult or ink’ passable. There appeared to be two or three blind roads running from the mouth of the Eutaw' creek towards the Con-garee road, sometimes in the direction of the road contemplated. But one, was opened several years since,.nearly south, by one of the witnesses, when he lived at the ferry, to facilitate his approach to his summer residence in the pine barren; there was another in a more westerly direction, which was called the neighborhood road. The one which the plaintiff wished opened would have taken a still more westerly direction, and pass through a swamp attached to Williams’ creek. This would have effected more completely the object of the parties than any other; as less distance would have been lost by travellers who might be unable to cross at the ferry.. There were advantages' and disadvantages peculiar to each course. It is thought unnecessary here to state them all. It is however, important to state that the road by Williams’ creek would pass over lands said to belong to Samuel Gour-din, the son of defendant, and, land belonging, or said to belong to one O’Farrell and his heirs. Mr. Davis had directed his overseer to open the road; and he informed Mr. Gour-din, the son, then living on the land, of his instructions, who replied that the road might be opened if they pleased as far as his line, but not beyond it. The son occupied and planted thé land from .the date of the lease; before that period if had been called the land of his father. On the 1st and 7th of February, 1819, defendant wrote to Davis and proposed to build the bridge across Eutaw creek, if Davis would give 200 dollars, or that he would give Davis 200 dollars if. he would build the bridge. He further observed that the road could not be cut without.the.sanction of the legislature. On the 14th of February, Davis, in a letter,to Gourdin, insisted upon having the road,and bridge made; this appeared by a-copy .of the letter transmitted to Lehre in a letter from the defendant on the 7th February, 1819. .Op the -7- — of ■ 1819, an act was passed authorizing the .road by Williams* creek to be cut. At this time, Davis was a,member, of .the legislature. Qn the 22nd.of July, 1822, the defendant, by his attornies, Simons, and Waring, proposed.to Davis to. build the bridge and cut the road for 400 dollars, if he would do it. ,It was stated by ttyo witnesses, on the part of the plaintiffs, -that in,conversations with defendant, at different times6 he said that a road could.not.be cut .without an act. of the legislature, and had he known how. averse .his son was to have the road run through his. land, he would, not have, entered into any agreement .about openipg.it.
    The presiding judge charged the jury-if the .defendant had been, guilty-of a breach of .Ins covenant, they ought to give full-,damages; but,.he thought, he.had not. That.by the words and spiritof the .covenant, he wasto,be,regarded only,as an auxiliary. That Davis, was principal, .who ought to have called'upon defendant to proceed, with the . work and ■not defendant upon him. That the.agreement-wasloose; no specified direction,for the ;road;,to take;.and,that.certainly there was pothing.in.it which authorized,-D.avis to designate €he direction. That if Gourdin had refused wilfully to do any thing in the matter* he ought to be made to pay.
    The jury found a verdict for plaintiffs.
    An appeal was now made, on the grounds:
    1st; That no breach of covenant, On the part of defend» ant was proved.
    2nd. That the damages were greater than were warranted by any testimony adduced in the cause.
    
      Argued, 10th March 1825.
    
      Hunt, against the motion.
    Gourdin putting his son in possession of the land, through which the road was to run was an attempt to take advantage-of his own wrong, and the verdict is proper. The question Was tried upon it's nierits, without reference to form. The opening of the road was the consideration of the advance in rent, and the plaintiff was entitled to damages on the covenant.
    Dunkin, contra.
    The opening the road was a secondary stipulation in the covenant. This same case has been before the court before, and it was held the covenants were mutual and independant. (2 M‘Cord’s Rep. 514.) Before Davis Should have his action on the covenant, he should at leastnotiiy Gourdin, that he was ready tocommence the road, &c. Paying O’Farrell for the land was a condition precedent, and Davis should have been the agent in-doing so. See the act authorizing the road tobe made. The verdict should only have been for half the expense of building the bridge and making the road.
   Johnson, J.

By the covenant, on which this action is brought, the defendant wás bound to “ furnish one hálf of the labourers, necessary to erect a bridge -to be built and erected'across the 'Eutaw creek, at the entrance into Sante$ river; and-further to aid and assist in: opening a'rode about two miles in length from the mouth-of the'said Eiitaw creek, into the main Congaree road, leading from Charleston to Columbia, The object being that the said road- and bridge ’ be at the joint and equal espense óf both the contracting parties;!’ and the breaches assigned are, that he would not furnish one half of the labourers necessary to erect the bridge, and that he did not, and would not assist in opening the said road.

The question made by the first ground of the motion is, whether the defendant has broken bis covenant? For the purpose of determining the legal question,.it would perhaps, only be necessary to state that the bridge has not been erected, nor the road opened by either of the parties. But it does not appear that the defendant was even wanting in good faith. In his letters of the 1st and 17th of February 1819j. he oilers to the plaintiffs the alternative of giving or taking 200 for building the bridge, and in the latter he objects being himself the active agent in opening the road, until an act of the legislature could be procured; as it passed through the. lands of others; and the truth of this fact is proved by the act of the legislature of December, 1819, passed when Davis, one of the plaintiffs, was a member; and the notice of the 22nd July, 1822, contains a proposition to give or to take 200 for building the bridge or opening the road. Nor is there any evidence that the plaintiffs did at any time give the defendant notice that they were ready and prepared to go to work; and the question now is, whether these circumstances in law constitute a breach of the covenant on the part of the defendant? In the interpretation of contracts it is a universal rule that they are to be taken according to the intent of the parties, to be collected from the whole context, and with reference to the subject contracted about. If we look into this contract, if will be seen at once, that the thing to be done was contemplated as an immediate benefit to the plaintiff, and that the benefit to result to the defendant w as remote; so that it would be naturally expected that they should become the actors, the first movers in the business; and this is implied from the terms used, he is to furnish one half of the labourers to erect the bridge,” “ he is to assise in opening the road.” And apparently with a view to put this question beyond doubt, it concludes by saying the object is, that these things shall be done ai the equal expense of the parties. Taking it for granted then, that the plaintiffs were to be the actors, it follows that the defendant was not bound to move in the matter, until he had notice that the plaintiffs' were ready to engage in it; nor was he bound to contribute to the expenses, until they had been incurred. The same reasons which Would operate to exclude the plaintiffs from becoming the actors in the transaction would operate Still more forcibly to divest the defendant of that character, and the result would be* that both must move at the same instant of time. The work is not done, nor did the plaintiffs give the defendant notice that he was prepared to engage in it; as there is rio evidente that the conversation of the witness and defendant’s son ever came to his knowledge, or was intehded for him, until long after it transpired. But there is another view of the question, which is conclusive under the circumstances which this case comes "before the court. - It is dbvioUs that if the plaintiffs are entitled to recover for the breach, for the same reasons the de» fendant would also be entitled to his action; Neither has performed the work* and neither has given notice to the other of his readiness and preparation to engage in it. The mo* don for a new trial is therefore granted.

íhinkin, for the motion. Hunt, contra.  