
    Jewell vs. Blandford.
    [Mr. Dana for plaintiff: Mr. J. T. Morehead for defendant.]
    CoveNant.
    F:rom the Circuit Court for Daviess County.
    
      November 1.
    case?ment °f the
    An action may onTcovenant by which the pltf. ftrmbaUconditfon precedent, which form,1 became he by th ¿7tventecl on the6 ground that the prevention was a breach on the part of the defendant.
   Chief Justice Robertson

delivered the Opinion of the Court.

Blandford and Jewell entered into a covenant in which the former undertook, as a mill-wright, to build for the latter, fwo mills of a specified kind, and within a prescribed time; and the latter agreed to furnish certain materials, and make other provisions for the erection and completion of the job, and to pay the former twelve hundred dollars for the work when completed.

After only an inconsiderable portion of the work had been done by Blandford, he sued Jewell, on the covenant, averring that he had prevented him from progressing with the job, and had refused to furnish necessary materials and other facilities indispensable to the completion of the work covenanted to be done by the plaintiff.

Upon evidence from which the jury might, perhaps, have been authorized to infer a non-performance by Jewell, as alleged, and a refusal by him to permit Bland-ford to progress with his work, a verdict and judgment were rendered for twelve hundred dollars in damages. And the Circuit Court having overruled a motion to arrest the judgment for alleged defects in the declaration, and also having, afterwards, overruled a motion for a new trial, Jewell has brought the case here for revision.

We are inclined to the opinion that the declaration, liberally construed, may be sufficient — if, in such a case, where there has not been a full performance by the plaintiff of a condition precedent, an action can be maintained on the covenant.

An opinion favorable to the maintainance of such an action, in such a case, was intimated by this Court, in the case of Chamberlin et al. vs. McCallister et al., 6 Dana, 352; and upon full consideration, we now decide that, such an action may be maintained on the ground that the defendant had been guilty of a breach of covenant in preventing the plaintiff from performing his own part of it.

A motion in arrest of judgment, undone foranew trial, may both be made successively, in the same case; and, in this country, it is not material which is first.

Where certain covenants on the part of the pltf. constitute conditions precedent, which the deft, prevented him from performing, the extent of the Eltf’s recovery is is 'actual damage — not what he would have been entitled to for a full perform anee — as was de 352d’ 6 °ana’ posé, p. 476-7°e And, the verdict being for the full sum, when there was but a partial fudgnT/reversed for excessive dam msü-üctions^were not erroneous, The principle set linvs!McCaHis-ter, e Dana, and reasserted in this case (ante 473,) is not restricted in its application to contracts that are susceptible of apportionment ; it applies to those that are indivisible. Various doctrines in actions upon covenants with conditions precedent (contended for in the petition) recognized as well established ; but shown to be either not applicable to such covenants as that in Chamberlin & McCallister, and in this case, or to be accordant with the principles settled in that case & this.

We shall therefore consider only two other questions: first — Did the previous motion in arrest of judgment, preclude Jewell from a right to aslc a new trial? and, secondly — Was he entitled to a new trial?

First. Cases may, we know, be found in the .British books, in which Judges in England decided, that a motion for a new trial comes too late after an unsuccessful motion to arrest the judgment; and the only reason given for such a practice seems to have been that assigned by Bayley, Justice; and that is because, as he said, by moving to arrest the judgment the party acknowledged that there was no valid objection to the verdict. But that assumption is, in our judgment, unreasonable, and the estoppel deduced from it, seems to be equally so.

If it be true that a motion in arrest is an implied •waiver of a right to a new trial, should not a motion for a new trial equally operate as an implied admission that there is no cause for arresting the judgment? And, considered as an original question, is there, should there be, any such implied admission or waiver in either case? We think not. Indeed, in England, this is a mere matter of practice only, and arose in England, from the peculiar organization and powers of its Courts. Ther'e is no principle in it. Our practice is different, and is, therefore, in our opinion more consonant with justice and all the ends of the law.

We do not hesitate, therefore, to decide that the motion for a new trial did not come too late in this case, and the more especially, as by not objecting to it when made, the plaintiff in the action waived the technical objection which the British practice, if it had been adopted here, might have authorized him then only to make.

Second. The only substantial distinction between the case of Chamberlin et al. vs. McCallister et al. (supra,) and this case, is that, in that case, the Court instructed the jury to find the whole sum agreed to be paid for the completion of the entire job covenanted to be performed, and the record in this case does not show that any instruction was given by the Court. But that difference between the two cases cannot materially affect the application to this case, of the principle settled in the case reported; because there being, in this case, no proof of any special damage, and the work which had been done being very inconsiderable, when compared with all that Blandford undertook to perform for twelve hundred dollars, it is perfectly evident that, according to the case in 6 Dana, he was not entitled to twelve hundred dollars in damages; and that, therefore, it was the duty of the Circuit Court to have granted a new trial on the ground that the assessment was excessive, anc[ clearly unauthorized. ^

, . . . We are still well satisfied with the opinion m 6 Dana9 (suPra‘) It iu our judgment, maintainable upon both principle and authority; and is the true exposition of the law applicable to this case, and being so, is undoubtedly decisive of the question as to a new trial.

Wherefore, it is considered that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.

Petition for a Re-hearing.

December 15.

The counsel for Blandford would certainly not trouble the Court with this application for a re-hearing, but from strong convictions of duty. He sincerely hopes the Court will allow another argument.

The counsel believes that, there is a marked distinction between the case Chamberlin, vs. McCallister, 6 Dana, 352, and the present; in the circumstance that, in the former case, the contract from its terms was susceptible of apportionment. But if the rule of the common law, be as asserted by Evans, in his appendix to Pothier on Obligations, title Apportionment, that an entire contract cannot be apportioned or severed, then it is most respectfully submitted that this case comes within the rule.

The contract was entire; the defendant was bound to perform the whole work before he was entitled to be paid, and upon the performance, he was to be paid twelve hundred dollars. He was prevented by Jewell from completing it.

Besides the cases to which the Court was referred in the argument, (Marshall vs. Craig, 1 Bibb, 379; Majors vs. Hickman, 2 Bibb, 217, and Carrell vs. Collins, lb. 429,) which hold the broad principle, that where “ the appellant,” as in this case, “ is the cause why the condition precedent cannot be performed, therefore the covenant- or is excused, and the duty flowing from the appellant to the appellee, must attach.” 1 Bibb, 384. The cases of Jones vs. Barclay, Doug. 684, Hotham vs. E. 1. Company, 1 T. R. 638, Peters vs. Opie, 2 Saund., are directly to the point. The authority of the case of Bright vs. Cowper, 1 Brownlow, 21, has never been questioned in England. An action of covenant was brought upon a covenant made by the merchant, with a master of a ship: videlicet, that if he would bring his freight to such a port, then he ■ would pay him such a sum, and shows that part of the goods were taken away by pirates, and that the residue of the goods were brought to the place appointed, and there unladen, and that the merchant hath not paid; and so the covenant broken. And the question was, whether the merchant should pay the money agreed for,. since all the merchandizes were not brought to the place-appointed. And the Court was of opinion, that he-ought not to pay the money, because the agreement was not by him performed.

All the English cases agree that the Court cannot sever a contract which the parties have thought proper to make entire.

The case of Farnham and Pollard vs. Ross and others, 2 Hall’s N. Y. R., was decided by a Court whose-adjudications are held in the highest esteem.

The plaintiffs entered into a covenant with the defendants, whereby they stipulated to build and finish the Masonic Hall in the city of New York, within a certain period. The plaintiffs completed the building within the specified time, with the exception, of the front doors, and a certain stair way. These would have been completed also, but for the defendants themselves, who made certain alterations in their plan of the stairs, and delayed the finishing of the doors. An action was brought upon the covenant for the contract price of the work, and it was held by the Court, that this proof supported the averment of the performance on the part of the plaintiffs, and that the defendants could not interpose, as a defence, a delay occasioned by their own acts. The Court said upon this point, the plaintiffs “ were proceeding to complete both the stair way and the doors, within the limited time, when they were prevented from doing so by the interference of the defendants; who directed a different course of the work. This was in fact, a tender of performance on the part of th,e plaintiffs, and a refusal by the defendants, and these are held to be equivalent to an actual performance. And it is also held as a sound principle, that he “who prevents a thing from being done, shall not avail himself of the non-performance which he has occasioned.” These principles are recognized and established in Fleming vs. Gilbert, 3 John. R. 631, and are entirely applicable to the present case.”

They are equally applicable to the case before this Court.

If the Court will award a re-hearing, the counsel will endeavor to take, as he believes he can successfully, a dictinction between the case of Chamberlin and McCallister, and tire case of Smith vs. Wilson, 8 East, 437, there referred to, and the one now sought to be reconsidered.

A re-hearing is most earnestly solicited.

J. T. Morehead,

for Blandford.

Response to the Petition for a Re-iif.aring.

(By Chief Justice Robertson.)

December 24.

The cases cited in the petition do not conflict with the Principle recognized in the case of Chamberlin vs. McCallister et al. (6 Dana;) which is, in every essential particular, perfectly parallel with the case we are now earnestly asked to re-hear. The opinion in the case in 6th Dana did not depend, in any degree, on the question whether the contract was divisible or indivisible. It was decided altogether on a principle which applies to indivisible, as well as to divisible, agreements.

The cases referred to in the petition, maintain the following well established doctrines:

First — that if one party prevent the. other from performing his agreement, or fail to perform a condition precedent, he cannot recover damages for non-performance by the other party.

In all such cases the failure by the one, exonerates the other party.

Second — that if a party who is bound to do a single act, as a condition precedent, tender performance in a proper manner, and at the right time and place, he may enforce the contract against the other party. The reason of this doctrine is explained in the case of Chamberlin vs. McCallister et al., supra, and shown to be inapplicable to a case in which the precedent condition cannot be performed by a single act, and in which a tender cannot vest in the party to whom it is made, any right of property or of action.

Third — that in the second class of cases just described, the party offering to perform, may recover such damages, and only such, as he shall have actually sustained.

The case of Peters vs. Opie (2 Saund. 346,) sustains this last proposition, and is irreconcilable with that contended for in the petition, and to support which it has been cited by the petitioning counsel. It was an action of assumpsit with two counts, the first upon a promise to pay thirty shillings for the completion of a job of work, the subsequent performance of which, according to contract, was averred; the second upon a promise to pay eight pounds for another job of work, which the plain-, tiff had only offered to perform, and the performance of which the defendant refused to permit.

And on the general issue, verdict and judgment were rendered — not for the whole nine pounds ten shillings— but for only four pounds; which shows that the plaintiff did not recover the eight pounds stipulated for the job never actually performed; but recovered for a breach of 1;hat agreement, only such damages as he had actually sustained.

The case of Bright vs. Cooper, cited in the petition, is not applicable. It only recognizes the plain and familiar doctrine that, a party failing to perform fully an entire condition precedent, cannot maintain an action on his contract.

Nor has either of the other cases, cited in the petition and which were not noticed in the case of Chamberlin vs. McCallister et al., any bearing in favor of such a rule as that urged by the learned counsel in this case. In the case of Graham et al. vs. Ross et al. the Court in New York decided only, that, after completing a house, the undertaker could not be prevented from recovering the price stipulated for full performance on his part, by proof of the fact that a small part of the job had not been finished as soon as the contract prescribed — because the defendant had, by his own act, caused the delay. But in this case, the work undertaken to be done had all been done.

And in the case of Fleming vs. Gilbert, (3 Johns. Rep. 528,) the Court decided only, that a party, after preventing or waiving performance by the other party, according to their original contract, cannot recover damages for non-performance, according to the terms of that contract.

Having thus briefly noticed the supplemental cases brought to our consideration by the research of the vigilant counsel, and being, as we yet are, well satisfied with the principle of the case of Chamberlin vs. McCallister et al., we deem a re-argument of this case, which is just like that, altogether unnecessary.

If any further response to the petition should be considered proper, we must be permitted to make it by only inviting a careful examination of the case of Chamberlin vs. McCallister et al. and a full comparison of it with this case.

A re-hearing is therefore declined.  