
    Thomas Barksdale v. Anthony V. Toomer.
    B. covenanted with T. to dig a canal, &c. and to keep the same open ; and T, on his part covenanted that all suits against B, should cease and deter, mine: Held,tbatthe covenantto keep ojien, being without limitation of time, was independent, and not a condition precedent; and that upon the canal being dug, B. might compel T. to enter satisfaction on a judgment remaining open against him at the suit of T.
    A covenant to be performed without limitation of time cannot bo a condition precedent to another covenant.
    When a party omits, at the trial, to disclose to the Court, the object for which certain evidence is offered, and it is rejected for irrelevancy, he cannot afterwards obtain a new trial, by shewing that it could have been used for a purpose material to the issue.
    Tried before Mr. Justice Evans, at Charleston, January Term, 1831.
    Feigned issue. In 1820, the present defendant Toomer, recovered judgment against Barksdale, the present plaintiff, in an action on the case for obstructing the passage of water from liis plantation ; and in 1821 they agreed to reconcile their differences, and entered into the following covenant: Barksdale on his part covenanted to dig and keep open through his land, a canal of certain dimensions and locality, and also to open and keep open, a trunk of similar capacity, through his dam near the river: Toomer on his part covenanted that all suits in relation to their dispute should cease and determine. In 1827, Barksdale took out a rule against Toomer, to shew cause why satisfaction should not be entered on the judgment recovered by him in 1820 ; and upon cause being shewn, this issue was ordered to be made up, on the question, whether the judgment had been satisfied.
    At a former trial, the presiding Judge held, that the covenant was of itself a satisfaction of the judgment; and under his instructions, the jury found for the plaintiff. But upon appeal the verdict was set aside: The Court of Appeals holding, that the covenant was not of itself a satisfaction, but that digging the canal and opening the trunk were conditions precedent. A new trial was accordingly awarded, and the cause was brought on before Mr. Justice Evans.
    On the part of the plaintiff, the digging the canal and opening the trunk were established; though there was conflicting testimony, as to the work having been completed according to the true intent and meaning of the covenant. The defendant offered evidence to prove that the trunk and canal were in a state of decay and dilapidation ; and had both been so much neglected, as to be utterly useless for the objects contemplated : His Honor however held, that keeping the canal and trunk open was not a condition precedent to the entry of satisfaction on the judgment; and he rejected the evidence as irrelevant to the present issue. The defendant then offered a number of surveys, with the view of shewing, amongst other things, that the canal had not been dug on the site intended by the covenant, and that its failure to answer the end proposed by it, was in great part owing to this departure from the covenanted locality. This object, for which the surveys were offered, was not however made known to the Court at the time, although subsequently disclosed in the notice of appeal: and his Honor excluded them as irrelevant but stated in his report, that if he had been apprised of the use intended to be made of the surveys, he would have admited them. The jury, upon the evidence, found a verdict for the plaintiff; and the defendant now moved the Court of Appeals to set it aside, and to award a new trial.
    H. N. Cruger, for the motion.
    Memminger, contra.
    
   Johnson, J.

delivered the opinion of the Court.

Whether mutual covenants are to be construed as dependent, or independent, must, in the absence of any express stipulation, necessarily depend on the nature of the thing to be done; and it follows, that when no time is fixed for the performance of the conditions, and when, from its very nature, the time of the performance is indefinite, it never can be construed into a condition precedent. The case at bar furnishes, perhaps the best illustration. The second condition is that the defendant shall keep the canal open, and unobstructed for the passage of water, without any limitation of time. It is therefore a perpetual covenant, and one which it is impossible the covenantor can perform precedent to the satisfaction of the judgment. According to the rule contended for, the judgment must also be perpetual, which certainly was not contemplated by the parties. The evidence of the nonperformance of this part of the agreement was therefore properly rejected ; and the question, whether the plaintiff had fulfilled his agreement to make a canal and trunk in good faith, was properly submitted to the jury: And, however we may be disposed to question the correctness of their finding, there were certainly circumstances of a very imposing character which authorized it, and which will not therefore permit us to set it aside. If the surveys offered in evidence were intended to show, that the canal had not been opened on the site contemplated by the agreement, we concur with our brother Evans, that they ought to have been received. But without that explanation, they would have been at best but irrelevant, and on that ground objectionable. The Court had a right to see their application before they were admitted; that was withheld, and the exposition of the object comes too late. The motion therefore is refused ; and it is Ordered that the defendant do enter satisfaction on the judgment set out in the proceedings.

Motion refused.  