Dickinson, J.,
delivered the opinion of the court:
It is not denied by the counsel for the defendant in error that the mill was not finished; but it is contended that the facts of submission to an award by Manuel, the payments made by him to Campbell, and other circumstances detailed in evidence, go to prove his acceptance independent of mere possession. It is necessary for us to ascertain, first, the nature of the contract, and whether the performance of Campbell’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independant. Sergeant Williams, in his note to Pordage vs. Cole, 1 Saund. 320, note (4), remarks that many of the old, as well as modern cases are decided upon distinctions so nice and technical, that it is difficult to lay down any general principle by which to determine what covenants are independent, and what dependent. The only court rule is, to construct covenants according to the meaning of the parties, and the good sense of the case. To ascertain that intention, some general rules are adduced from adjudged cases: 1st. If a day be appointed for the.performance of any act, and such a day is to happen or may happen before the performance of the act which is the consideration of the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring.performance of the consideration; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent, and so it is when no,time is fixed for the performance of the consideration. 2d. But when the day or time appointed for the payment of money, or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of the condition. 3d. When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid in damages, it is an independent covenant, and an action may be brought for a breach of the covenant without averring performance.
And when a person has received a part of the consideration for which he entered into agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to retain that part, without either paying or doing any thing for it; and therefore, the law obliges him to perform the covenant on his part, and leaves him to his remedy — to recover damages for not receiving the whole consideration. 4lh. But when mutual covenants go to the whole consideration, on both sides, then they are mutual conditions and dependent.
When two acts are to be done at one and the same time, neither partj can maintain action without performance, or an offer to perform his part. Under what head ought this contract to be classed? We think there is no difficulty in putting a proper construction upon it. The building of the mill is a condition precedent to the payment of it; and when the mill is finished, according to his stipulation, all of Campbell’s covenants are necessarily fulfilled; while Manuel’s covenants, to find and pay one hand, &c., as they must be performed while the work is progressing, are necessarily concurrent and dependent upon Campbell’s. Each has charged himself with certain specified duties, for the non-performance of which an action of covenant will lie; or the party can bring debt upon the penalty, and assign breaches; but he cannot go out of his contract. He must recover, if at all, upon it. The plaintiff, in his declaration, avers performance, until hindered and prevented by the defendant; who, on his part, pleads performance of all his covenants, and non-performance by the plaintiff. He also pleads payment. The execution of the contract, and the payment of ninety dollars, are admitted. Manuel denies all liability. On the trial of this case, a verdict was given to Campbell for seventy dollars: to secure it, the plaintiff in error sued out his writ to this Court. The evidence adduced upon the trial, is substantially correct, as stated by the counsel of the plaintiff in error. The whole is set out in a bill of exceptions; also, the objections raised to the judgments: that the Court refused to instruct the jury, 1st, “ That if they believed that the work by said contract agreed to be done, was not done by said plaintiff in a workmanlike manner, or the manner specified in said covenant, the plaintiff cannot recover, unless the defendant accepted said mill in discharge and satisfaction of the covenant aforesaid ; and that the mere fact of his remaining in possession of said mill, does not prove that he accepted it in discharge or satisfaction of the covenant. 2d, And also, that the jury cannot make a deduction, and give a verdict for the plaintiff, for a balance which they may think should be reasonably allowed him for his labor in this action, in case they believe the work not to have been done in a workmanlike manner, or not in the manner specified in the covenant; but must, in such case, find for the defendant.”
The mere fact of remaining in possession, proves nothing; for Manuel could not divest himself of it without surrendering a portion of his freehold, which he was not bound to do. The residue of the instructions asked for, will be considered together. Here is a contract under seal, entered into, by which Manuel stipulates to pay Campbell a certain sum, upon certain conditions, second, by a penalty. Campbell aveys performance, or what he contends is equivalent to performance, and therefore claims the sum stipulated to be his in that event. The parties themselves have made the contract the law by which they are to be governed, and have fixed the criterion of damages to which Campbell is entitled; and a jury cannot obviate the effects, of such a contract, by giving damages only commensurate with the labor. The sum stipulated to be paid for the whole, might be greatly over the real value of that kind of work; or, on the other hand, if that price, so agreed upon, had been too low, by disregarding the terms of the agreement, and rating the labor at the ordinary value of such work, it might, upon the same principle, if only partly done, carry it beyond the price agreed upon for the whole when completed. In neither event, would such a rule have an equal bearing upon the parties, or be consonant with justice.
If there is no fixed sum'agreed upon, then the rule is, that he shall have a reasonable price, commensurate with the labor done, allowed him. It is not so much of an inquiry whether Manuel complied with his contract, as whether Campbell, the party claiming to be injured, fulfilled his own covenants. For the breach of good faith on one side, will not aid him who is equally guilty. Campbell must first bring himself within the equity of the law, before he can claim to have it enforced upon the other. In conclusion, Campbell must show that, up to the time when he charges Manuel with a refusal to board him, &c., he had himself complied with every thing which on his part he had promised to do. Then, and not till then, can he claim the price stipulated to be paid him; and then, he is entitled to the whole of it; for, if Manuel was in fault, and threw Campbell out of employ, and compelled him to incur losses and expenses, he has no right to complain upon being required to conform to his contract.
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Dickinson, J.,
delivered the opinion of the court:
It is not denied by the counsel for the defendant in error that the mill was not finished; but it is contended that the facts of submission to an award by Manuel, the payments made by him to Campbell, and other circumstances detailed in evidence, go to prove his acceptance independent of mere possession. It is necessary for us to ascertain, first, the nature of the contract, and whether the performance of Campbell’s part of the agreement was a condition precedent to the payment by the defendant, or whether the covenants are mutual and independant. Sergeant Williams, in his note to Pordage vs. Cole, 1 Saund. 320, note (4), remarks that many of the old, as well as modern cases are decided upon distinctions so nice and technical, that it is difficult to lay down any general principle by which to determine what covenants are independent, and what dependent. The only court rule is, to construct covenants according to the meaning of the parties, and the good sense of the case. To ascertain that intention, some general rules are adduced from adjudged cases: 1st. If a day be appointed for the.performance of any act, and such a day is to happen or may happen before the performance of the act which is the consideration of the first mentioned act, then the covenants are considered mutual and independent, and an action may be brought without averring.performance of the consideration; for it appears that the party relied upon his remedy, and did not intend to make the performance a condition precedent, and so it is when no,time is fixed for the performance of the consideration. 2d. But when the day or time appointed for the payment of money, or performance of an act is to happen after the thing which is the consideration is to be performed, no action can be maintained before performance of the condition. 3d. When a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid in damages, it is an independent covenant, and an action may be brought for a breach of the covenant without averring performance.
And when a person has received a part of the consideration for which he entered into agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to retain that part, without either paying or doing any thing for it; and therefore, the law obliges him to perform the covenant on his part, and leaves him to his remedy — to recover damages for not receiving the whole consideration. 4lh. But when mutual covenants go to the whole consideration, on both sides, then they are mutual conditions and dependent.
When two acts are to be done at one and the same time, neither partj can maintain action without performance, or an offer to perform his part. Under what head ought this contract to be classed? We think there is no difficulty in putting a proper construction upon it. The building of the mill is a condition precedent to the payment of it; and when the mill is finished, according to his stipulation, all of Campbell’s covenants are necessarily fulfilled; while Manuel’s covenants, to find and pay one hand, &c., as they must be performed while the work is progressing, are necessarily concurrent and dependent upon Campbell’s. Each has charged himself with certain specified duties, for the non-performance of which an action of covenant will lie; or the party can bring debt upon the penalty, and assign breaches; but he cannot go out of his contract. He must recover, if at all, upon it. The plaintiff, in his declaration, avers performance, until hindered and prevented by the defendant; who, on his part, pleads performance of all his covenants, and non-performance by the plaintiff. He also pleads payment. The execution of the contract, and the payment of ninety dollars, are admitted. Manuel denies all liability. On the trial of this case, a verdict was given to Campbell for seventy dollars: to secure it, the plaintiff in error sued out his writ to this Court. The evidence adduced upon the trial, is substantially correct, as stated by the counsel of the plaintiff in error. The whole is set out in a bill of exceptions; also, the objections raised to the judgments: that the Court refused to instruct the jury, 1st, “ That if they believed that the work by said contract agreed to be done, was not done by said plaintiff in a workmanlike manner, or the manner specified in said covenant, the plaintiff cannot recover, unless the defendant accepted said mill in discharge and satisfaction of the covenant aforesaid ; and that the mere fact of his remaining in possession of said mill, does not prove that he accepted it in discharge or satisfaction of the covenant. 2d, And also, that the jury cannot make a deduction, and give a verdict for the plaintiff, for a balance which they may think should be reasonably allowed him for his labor in this action, in case they believe the work not to have been done in a workmanlike manner, or not in the manner specified in the covenant; but must, in such case, find for the defendant.”
The mere fact of remaining in possession, proves nothing; for Manuel could not divest himself of it without surrendering a portion of his freehold, which he was not bound to do. The residue of the instructions asked for, will be considered together. Here is a contract under seal, entered into, by which Manuel stipulates to pay Campbell a certain sum, upon certain conditions, second, by a penalty. Campbell aveys performance, or what he contends is equivalent to performance, and therefore claims the sum stipulated to be his in that event. The parties themselves have made the contract the law by which they are to be governed, and have fixed the criterion of damages to which Campbell is entitled; and a jury cannot obviate the effects, of such a contract, by giving damages only commensurate with the labor. The sum stipulated to be paid for the whole, might be greatly over the real value of that kind of work; or, on the other hand, if that price, so agreed upon, had been too low, by disregarding the terms of the agreement, and rating the labor at the ordinary value of such work, it might, upon the same principle, if only partly done, carry it beyond the price agreed upon for the whole when completed. In neither event, would such a rule have an equal bearing upon the parties, or be consonant with justice.
If there is no fixed sum'agreed upon, then the rule is, that he shall have a reasonable price, commensurate with the labor done, allowed him. It is not so much of an inquiry whether Manuel complied with his contract, as whether Campbell, the party claiming to be injured, fulfilled his own covenants. For the breach of good faith on one side, will not aid him who is equally guilty. Campbell must first bring himself within the equity of the law, before he can claim to have it enforced upon the other. In conclusion, Campbell must show that, up to the time when he charges Manuel with a refusal to board him, &c., he had himself complied with every thing which on his part he had promised to do. Then, and not till then, can he claim the price stipulated to be paid him; and then, he is entitled to the whole of it; for, if Manuel was in fault, and threw Campbell out of employ, and compelled him to incur losses and expenses, he has no right to complain upon being required to conform to his contract.
This is not like many of the cases reported in the books, where contracts arc enlarged, changed, or rescinded, by mutual consent, or where extra work is done, for which the party claims a reasonable compensation upon a quantum meruit in assumpsit, without relying upon the stipulations expressed in the contract.
The counsel for the defendant in error, contends that he only contracted to do the work to the best of his “knowledge, skill, and ability,” and objects to the introduction of the word “ workmanlike” in the instructions asked for. This objection cannot be sustained; for when a party contracts to do a certain piece of work in his “ trade,” he is presumed to be both able and willing to do it in a workmanlike manner: the very oiler to do the work, pre-supposes capacity. To say that a builder, after the destruction of the materials, and the expenditure of his employer’s means, should be permitted to shield himself from damages, upon the ground that he only contracted to the best of his knowledge, skill, and ability, and that he is not responsible if the work is not done in a workmanlike manner, would be a fraud which the law will not countenance. If the contractor doubts his own capacity, he must provide for it in his contract; otherwise, if he uses general expressions, he must be governed by general rules: Bull. N. P., 139; 10 Mass., 287; Stagg vs. Munro, 8 Wend., 399; Northrop vs. Northrop, 6 Com., 296; Lawrence vs. Dale, 3 J. C. R., 23; Jewell vs. Schroeppel, 4 Cowen, 564.
The award of the arbitrators ought not to be considered; for the object of submitting matters of contract to arbitrators, is for the purpose of obtaining a speedy and final determination of the matters in dispute, with less delay and expense than by having recourse to the ordinary tribunals of the country, it is the intention of the parties, in submitting their disputes, to have something ascertained, which was «before uncertain; and it is a general rule, that the award ought té beso plainly expressed, that there may be no uncertainty in what manner, and when, the parties may put it into execution, but that they may certainly know what it is they are to do. An uncertain award is useless.
The award here is neither certain nor conclusive, but indefinite, unfinished, and not final; it can therefore have no bearing upon either of the parties. The testimony of the several witnesses introduced, does not clearly show cither performance or its equivalent upon the part of Campbell, nor the acceptance of the work by Manuel. Upon the whole, we are of the opinion that the first instructions asked for were rightfully refused by the Court, as too broad and general; for it is a sound principle, that he who prevents a thing from being done, shall not avail himself of the non-performance he has occasioned; but that the Court erred in not giving the second instructions, as moved by the plaintiff in error; and as this Court cannot know what influence the refusal so to instruct may have had upon the finding of the jury, the judgment is reversed.