Leonard v. Dyer

Hinman, J.

The question whether the stipulations in a contract, in respect to acts to be performed by the parties, are conditions precedent to the right to enforce performance on the part of one of them, is to be determined by the intention, as it is derived from the contract itself, rather than from any technical rules of construction which might be applied to it. As remarked by Tindal, C. J., in Stavers v. Curling, the rule has been established by a long series of decisions in modern times, that the question whether covenants are to be held dependent or independent of each other, is to be determined by the intention of the parties as it appears on the *177 instrument, and by the application of common sense to each particular case ; to which intention, when once discovered, all technical forms must give way.

No doubt where there is an entire, open, unrescinded, special contract, by which compensation for services to be performed is clearly made to depend upon full performance, the party whose part is unperformed can not recover, either on the contract itself or in general assumpsit, for such part performance as he may have rendered; because the parties may enter into such stipulations as they please. Eut the question in every case is whether such intention is expressed in the contract; and where such intention would seem to be contrary to the equity of the case, courts ought to require that it should be clearly and precisely expressed before they enforce it. Applying the plain and reasonable rule.of construction just suggested to the present case, we think it was not the intention of these parties that the transportation of the whole lot of lumber should, under all circumstances, be a condition precedent to the right of the plaintiffs to recover for any thing they might do under the contract.

By the finding it appears that there was no express agreement that the whole lot of lumber should be taken, but as there was an understanding and expectation that it would be, it is insisted that this was necessarily implied, and is therefore as much a part of the contract as if it had been definitely expressed. If, in fact, it had been expressed in general terms that the whole lot should be taken, it might perhaps be worthy of consideration, whether, in order to give a reasonable construction to it, such an unforeseen contingency arising from the act of God as existed in this case, and prevented its performance, ought not to be considered as excepted out of it. But, however this may be, it appears to Us that to supply by implication a stipulation not contained in the contract, that the plaintiffs would at all events take and transport to Hartford the whole lot of lumber, without reference to any unforeseen contingencies, would be quite unreasonable ; and the expectation of the parties that the whole lot would be taken, is quite insufficient for the purpose of sup *178 plying such a stipulation. Had the parties contemplated such a freshet in the river as to make it impossible, in the exercise of reasonable care and diligence, to put the lumber on board the vessel, it is plain that the master of the vessel would never have entered into a contract to do it. And if we were to add stipulations to the contract which the parties themselves did not make, it appears to us that such only should be inferred as the parties themselves would have made, had they foreseen the circumstances that rendered such stipulations important.

But had the contract been such as the defendant contends that it was, we should still be of opinion that the plaintiffs might recover for the lumber that they actually transported under it. The case then would be very similar to that of Ritchie v. Atkinson, 10 East, 295, where the master of a vessel had contracted to bring to London a complete cargo, to be paid for at a certain rate per ton, and inasmuch as the contract was divisible, the court held that the plaintiff might recover for so much as he actually brought, though less than a complete cargo. And Lord Ellenborough remarked, that all the cases of conditions precedent have been where the thing to be done was a strict indivisible condition. Here, as in the case referred to, the delivery of the lumber, to be paid for in proportion to the extent of the delivery, leaving the defendant to his remedy for a short delivery, is in its nature divisible; and on this ground the plaintiffs would be entitled to recover. The defendant’s case, as it appears to us, is no stronger than the case of Boone v. Eyre, 6 T. R., 573, where the defendant was held liable to pay for a plantation with the negroes upon it, although the plaintiff had covenanted that he had a good title and was lawfully possessed of the negroes, and the defendant covenanted that the plaintiff well and truly performing all and every thing in the deed contained on his part to be performed, he, the defendant, would pay, &c., and the plea, which was overruled, set up the fact that the defendant had not a good title to the negroes, and was not at the time legally possessed of them. We have not, therefore, thought it necessary to enquire whether the *179 plaintiffs’ case comes within the principle upon which a class of cases rests, some of which have been cited in the argument, in which it has been held that where a plaintiff has been prevented by the act of God from performing certain specified services contracted for, he may nevertheless recover for what he has done under such a contract; being satisfied for the reasons already given that the plaintiffs are entitled to recover the pro-rata compensation provided for in the contract for the lumber actually transported by them. And. so we advise the superior court.

In this opinion the other judges concurred.

Judgment for plaintiffs advised.