Shaw v. Turnpike Co.

*458 The opinion of the court was delivered by Ross, J.

The only question presented for the consideration of the court in this case is, whether the plaintiff can support this action without shewing that he has performed or offered to perform his part of the contract, or that the defendant had waived the performance thereof. It was contended on the trial by the counsel for the defendant, that the contract being entire, the plaintiff could not recover without stating and proving, that he had performed, or was ready and offered to perform, but that the performance was prevented by the other party. The judge, who tried this case, declined expressing any decided opinion on this point, but refused to arrest the cause at that stage of the proceedings; remarking to the counsel, “you shall have the full benefit of the exception, if necessary, but I will not arrest the cause now; I will consider the points against you.” The question is therefore,now before this court for decision.

If it be decided according to the terms of the written contract alone, as set forth in the plaintiff’s statement, he clearly is not entitled to recover, because it is an entire contract: the general rule being that an entire contract cannot be apportioned, Chit, on Con. 273. The plaintiff, however, in this case attempted to apportion the contract. He says, that having made and bedded the road twenty-one feet wide according to the stipulation contained in the agreement, and it having been accepted by the company, and licensed by the Governor, he has a right to recover the full amount engaged to be paid him on the completion of the whole road, without making or finishing the side roads, or opening the road fifty feet wide, according to his contracts in the article of agreement. The construction of the contract must be collected from the instrument itself. There is no obscurity in "a-n any of its provisions. The duties to be performed, and the time and manner, in which he shall receive compensation, are clearly designated. The rule, thatwhere the parties have entered into an express contract, no other can be implied, has existed so long, and been so repeatedly recognized by judicial decisions, as to have become an axiom in the law. 6 T. Rep. 324.

A Court of Chancery never professes to bind a man to any agreement, which he has not substantially entered into, 14 Vez. 407. Jer. Eq. 467. If the verdict in this case should be sustained, it will bind the company to pay money, which by their contract, they were not bound to do, until that part of the plaintiff’s contract was completed, which remains unfinished. By the article of greement, one thousand dollars was to remain unpaid, until the whole contract should be performed. And it is conceded, that if the inter» *459 est be deducted from §1700 dollars, (the amount of the verdict,) the balance will not amount to one thousand dollars. Yet by the contract, that amount of work on the road, was to be always kept-in advance, until the whole should be completed: The whole road has never been completed, and the plaintiif is not entitled to recover any thing, unless, he can shew there is more in arrear than one thousand dollars.

This principle is fully established by the cases cited during the argument, I will advert to one of them, which seems to me decisive of the point under consideration. In 13 Serg. & Rawle, 47 , Pedan et. al. v. Hopkins, the question was, whether if a person contracts to build a bridge or bridges, the work must be finished before the plaintiif can recover. Chief Justice Tilghman, giving the opinion of the court, says “that he is not entitled to recover, unless the work was finished, or he was prevented from finishing it by the act or consent of the defendants.-’-’ In the present case, the plaintiff has not finished the road according to the terms of the contract, and he has brought the suit for the whole amount, which would have been due, if he had complied with the contract. He cannot, however, recover until he has finished the work.

On the subject of apportioning an entire contract, a strong case may- be found in 1 Salk. 65. It was an action of debt, in which the plaintiff declared upon an instrument of writing, whereby the defendant’s testator had authorized the plaintiff’s testator to recover his rents, and promised to pay him ¿100 per annum for his service. The defendant’s testator died three-quarters of a year after, during which time the service had been performed; and the plaintiif demanded seventy-fivepoundsfor the three-quarters of the year. It was decided, that being one consideration and one debt, it could not be divided. The plaintiff was not entitled to recover. In illustration of the position, that where the contract is entire, it cannot be apportioned, see also 1 Swans. Rep. 438 — 9, and notes. 1 Sauhd. Rep. 288, note 3. Bro. ah. apportion, fol. 13, 22, 26. 3 Pin. 8 ,9. Co. Lit. 150, a. 1 Ld. Ray. 360, Hawks. v. Cardy. 1 Stra. 648, Weaver v. Borough. Doug. 23, Weston v. Downes, Cowp. 818, Powers v. Wills. 3 Mad. 153. 2 Mass. Rep. 147 . 1 Carth. 466.

In certain cases by the agreement of the parties, time may be made of the essence of a contract. 3 Maddox, 447; 6 Mad. 26; Jeremy on Eq. 461; in which case it must be observed as strictly as at law. In other cases time is necessarily of the essence of a contract, from the nature of the subject-matter of the bargain. 1 Term. Rep. 79. Thus in the sale of a reversion, time is of the essence of the contract, because it may be contemplated, that the vendor is in want of the consideration money, and to whom therefore it is *460 of importance, that the principal should be paid at the time appointed. Newman v. Rogers, 4 Bro. Chan. 391. So also where the value of the property is peculiarly liable to fluctuation, as national stock: — or where the agreement is to sell at the valuation to be made by individuals named within a certain period, time is of the essence of the contract. Morse v. Merish, 6 Mad. 26. In the case before us, it may indeed be said that time is of the essence of the contract, from the very nature of the subject-matter of the agreement, being to do that, which the act of assembly required to be done by a fixed and certain day. The provisions of the act of assembly, the subject-matter of those provisions, and the covenants of the parties, all tend to prove that time was an essential part of the contract. In fact, the parties themselves by their agreement seem to have made it of the essence of the contract. The act incorporating the company, was passed the the 25th day of February, 1813. The plaintiff on the 3d of June, 1815, entered into articles of agreement with the defendants, to make the road as therein stipulated, on or before the first day of September, 1818. The company agree to pay the plaintiff, “for and in consideration, that they shall make the road as aforesaid,' — complete and in a workman-like manner as before described, and at or ivithin the term above stated and agreed upon.” When the whole road should be completed, then the plaintiff was to recieve the balance. Time is thus made essential in order to secure to the company the rights and privileges granted by the act of assembly. By the 5th section thereof, it is expressly provided, “that if the company shall not proceed to carry on the said work in three years after the passing of the act, or shall not within seven years afterwards, complete the said road, &c. all and singular the rights and liberties, &c. shall revert to the commonwealth.” Thus positively fixing a time within which the road must be finished, and annexing a forfeiture on failure to do so. Whether time was originally of the essence of a contract, and whether, if it were, it continued to be so, are questions depending on evidence. Levy v. Unde, 3 Mer. 81. This matter has been adverted to, as forming a point of much consideration in the future trial of this case.

The plaintiff has endeavored to assimilate this case to contracts in reference to real estate. But there is little or no resemblance between them. The courts of equity, never interfere in contracts about personal chattels, either to enforce, rescind or mitigate their obligations — unless indeed in a very few cases, in which from an artificial value being attached, a fair estimation thereof is not to be expected in the ordinary transactions of society, and in lieu of which therefore, it is probable, that adequate compensation, by way of damages, would not be given by a jury. Thus as in the case of *461 articles curiously engraved, valuable paintings, dresses, books,-tooís, &c. of a society of free-masons. So of a cherry stone finely carved, and other articles possessing merely an artificial value. 3 Vez, 71. Jeremy Eq. 467. 1 Vern. 873. 3 Pr.Wms. 390. Ambler, 77. 6 Vez. 773, Lloyd v. Loaming.

Inadequacy of price of itself is not a sufficient ground for Chan-ceryto interfere, unless it is so gross as to furnish evidence of fraud.

From a careful examination of the authorities applicable to this case, the following positions may be deduced as general principles of the law.

1. That when a contract is entire, before any recovery can be had of the" consideration money, the plaintiff must prove, that he has performed, or is ready to perform his part of the contract, or . that the performance was prevented by the defendant.

2. That time may be' an essential part of the contract, either from the nature of the transaction, or the subject-matter of the agreement.

3. Time may be made a material and essential part of a contract, by the)express undertaking' of the parties, as well in equity as in law: and when so, must be as strictly observed in equity as at law.

4. Either party may waive any right, introduced into or provided by the contract, either expressly or tacitly, by acts or declara-' rations fairly indicating a relinquishment of any provision or part of a provision) and without the performance of which, unless relinquished or waived, a recovery could not be had. But in all such cases, the facts are for the determination of the jury, but whether, if established, they amount to a waiver, is a question of law. It would be dangerous for the jury to decide, whether the party had abandoned his rights. This power ean only be safely entrusted to the courts, who alone can, in the exercise of it, give uniformity to the law.

Judgment reversed, and a new trial awarded.