
    Rogers vs. Love, et als.
    
    1. Where, from the nature of the agreement, a special demand is necessary, but ■the demand is not averred in the declaration, such omission will be cured by verdict, and the formal “scepius rcquisilus” held sufficient; and this upon the ground, that a recovery would not have been suffered by the court, unless a Bpecial request 'had been shown in proof.
    2. Where A. was the owner of a furnace, and B. of a forge, and A. agreed to furnish B. with five hundred tons of pig metalas B. should need sucjt metal for manufacture: Held, that B. was not entitled to demand and have delivered to him the whole amount of five hundred tons at once, and that the obligation to supply was limited to the wants ofB.’s manufactory, and that B. was bound from time to .time to notify A. of the wants of his establishment.
    William R. Love, one of the partners of the firm of W. R., James & Preston Love, having made an affidavit before the clerk of the circuit court of Sevier county, that they were unable to bearthe expenses of the law-suit they were about to commence, and that they were justly entitled to the recovery of an amount within the jurisdiction of the circuit court, obtained a writ in covenant, against Micajah C. Rogers, on the 4th of August, 1838, in accordance with the provisions of the act of 1821, ch. 22, for the benefit of poor persons. N. & C. p. 533.
    This writ was executed, and the court at the August term, 1838, ■appointed Hynds and Peck, attornies at law, by virtue of the provisions of the 2d section of said act, to prosecute the said suit for the benefit of said plaintiffs.
    The declaration set forth a covenant, signed by Love & Brothers and by Rodgers, which recited, that Love & Brothers had on the 1st day of November, 1836, sold a furnace, in Sevier county, to Rodgers, and “in part consideration of such sale, said Rodgers binds ■himself to furnish said Love & Brothers with what merchantable pig iron they may be able to manufacture into bar iron or blooms, at their forge or forges, in Sevier county, not exceeding five hundred tons of pig iron per annum, to be delivered at the furnace aforesaid, as they may need them. And the said Love & Brothers •on their part, agree to pay to said Rodgers, one ton of merchantable f well assorted bar iron, for every four tons of pig iron they may get of said Rodgers, payable quarterly, from and after the 1st day of April, at Pigeon Forge, or not more than that distance from Sevier-ville. That is, at the end of each quarter, they are to pay for what pig iron they may have had; and for a violation on the part of either, the party in default, shall be liable in damages to the other. The said Rodgers further agrees to let the said Love & Brothers have what metal they may need for their own use at their forge, cast into hammers, plates, stands, &c., at the same price they receive pig metal; the said Love & Brothers paying the moulders for casting them the customary prices. This contract to take effect and remain in force for and during the term of eight years, from and after the 1st day of April next. For the true performance of which, the parties bind themselves in the penal sum qf twenty thousand dollars to each other.”
    And the plaintiffs averred, that the defendant did not furnish the said plaintiffs what merchantable pig iron they were able to manufacture into bar iron or blooms at their forge, in Sevier county, not exceeding five hundred tons per annum, delivered to the said plains tifis at said furnace as they needed them, from the 1st day of April, 1837, to the 1st day of April, 1838, according to the true intent and meaning of said agreement; and so the plaintiffs in fact say, that •the said defendant, though often requested to keep and perform his said covenant with the plaintiffs, hath wholly failed and refused, to the damage of the said plaintiffs eight thousand dollars.
    The defendant pleaded, that he had kept and performed his covenant, and upon this plea issue was joined.
    The cause was continued till the August term, 1840, when it submitted to the jury, R. M. Anderson, judge, presiding.
    It appeared, that Rodgers took possession of the furnace under the covenant, but that he failed to supply the forge with metal according to covenant, and that in the second and third quarters of the year, beginning on the 1st day of April, 1837, and ending on the 1st day of April, 1838, the plaintiffs received of the defendant some fifteen tons of pig metal. In the last quarter there were some twenty tons received, some of which was bad metal; that the plaintiffs had two fire-places in blast; that Rodgers failed to furnish the pig metal, and that in consequence the forge was idle a great part of the year, &c., and that if kept in employment during the whole year, the profits arising therefrom would have been some seven or eight thousand dollars.
    There was much contradictory testimony submitted to the jury, in regard, to the profits of the establishment if supplied with metal, to the length of time the forge would have been necessarily stopped by low water, by the necessity of repairing, &c.
    
      It did not appear that there was a demand made at the furnace for the pig metal, but that a demand, was made' at Se'vierville, in the county of Sevier, and information given; that the metal could not be got upon application at the furnace or elsewhere.
    The jury, under the charge of the court, rendered a verdict in favor of the plaintiffs, for the sum of six thousand dollars.
    A motion for a new trial was made by defendant and overruled, and a motion for an arrest of judgment was also made and overruled. The defendant appealed in error to the supreme court.
    
      Swan, for Rodgers.
    
      Hynds and Peck, for Love and Brother's^
   Reese, J.

delivered the opinion of the court.

This is an action of covenant. The covenant, among other things, recited that Rogers purchased of Love & Brothers their furnace, in part consideration of which, he bound himself to furnish them with what merchantable pig iron they might be able to manufacture into bar iron or blooms at their forge or forges in Se-vier county, not exceeding five hundred tons of pig iron per an-num, to be delivered at the furnace aforesaid, as they might need it. And the Loves on their part, agreed to pay to said Rodgers one ton of merchantable, well assorted bar iron, for every four tons of pig iron they might get of the said Rodgers, payable quarterly at Pigeon Forge, or not more than that distance from Sevierville. That is; at the end of each quarter, they were to pay for what pig iron they may have got. The breach assigned in the declaration is, that defendant, Rodgers, did not furnish plaintiffs below, with what merchantable pig iron they were able to manufacture into bar iron or blooms at their forge in Sevier county, not exceeding five hundred tons per annum, delivered to the said plaintiffs at said furnace as they needed them, from the 1st day of April, 1837, to the 1st day of April, 1838, according to the tenor and effect, true intent and meaning of said agreement, although often requested, &c. And to this declaration, the defendant pleaded “covenant performed.”

Upon the trial, the court charged the jury, that the true construction of the covenant was, that the covenants were mutual and independant covenants. That the provisions of the act of 1807, did not apply to the case; nor was a special request necessary, but the common request in the declaration was sufficient on the issue joined; that the defendant, by the terms of his covenant, was bound at all times from the 1st April, 1837, to 1st April, 1838, to have at his furnace the whole amount of the'pig iron, not exceeding five hundred tons. And if the plaintiffs had at any time applied for the five hundred tons of pig iron at once, it would have been evidence that they needed it, and if it was not delivered, that would have been a breach of that covenant. ‘ The court also charged the jury, that it was not necessary for the plaintiffs to malee out in evidence, that they had not received the pig metal, but that' proof that it had been demanded at Sevierville, and information had, that there was no metal, would excuse a demand being made at the furnace, and amounts to a demand.

Plaintiffs obtained a verdict, and the defendant moved in arrest of judgment, which the court refused.

The question raised by the motion in arrest of judgment is, whether, where from the nature of the agreement, a special demand is necessary, but not averred in the declaration, such omission will be aided by verdict and the formal scépius requisitus be held sufficient?

Of this we have no doubt, both upon reason and authority. It falls within the general rule applicable to such cases; it is the defective statement of a title, and not the statement of a defective title ; and the omission is cured by verdict, upon the ground, that a recovery would not have been suffered by the court, unless the omission had been supplied in proof, and the special request shown. There is no error, therefore, in' the refusal of the court to arrest the judgment. But we we are satisfied that the charge of the court to the jury is erroneous, .the court having misapprehended the meaning, and legal effect of the covenant. It seems obvious, that the contracting parties, manufacturers of iron, the one owning, a furnace of pig metal, and the other owning, forges of bar iron, to be carried on through the year, could not, and did not, intend that so much as five hundred tons should have been furnished at once; because in the nature of things the one could not at once supply, or the other, at once need so large an amount. The five hundred tons are the maximum of the aggregate amount to be distributively delivered at the furnace, in convenient quantities, throughout the year, as the same might, according to circumstances, be needed from time to time, by the manufacturer of the bar iron.

As Rodgers was not bound to deliver five hundred tons of pig iron during the year to the Loves, but only so much, not exceeding that amount, as they might need during the year at their man-ufactories, his obligation from time to time to supply, was necessarily limited by their wants, from time to time, to consume; and, therefore, from the nature of the thing, it was incumbent upon the Loves, from time to time, to notify Rodgers of the extent of their wants, and to demand, as needed, a convenient supply.

Entertaining these views of the meaning of the contract, and of the reciprocal duties of the parties to each other, it becomes necessary to reverse the judgment, and grant a new trial.  