Randel v. President of Chesapeake & Delaware Canal

1 Del. 151

Opinion

The Court took time to consider the case, and intimated that they would express their opinion during the approaching session of the Court of Errors and Appeals; when

The following opinion of the court was delivered by Mr. Justice Harrington:

Harrington, J.

The questions on these demurrers involve a construction of two clauses of the contract entered into between Randel and the canal company, and also several points in relation to the manner of setting forth the breaches on these parts of the contract.

The clause declared on in the seventh count is the following:

(Time.) “And it is further understood and agreed as aforesaid that the time within which it shall be incumbent on the said party of the first part fully to perform and complete the said contract shall not be taken to be less than four years from and after the first day of May next ensuing.”

The meaning of this clause is the subject of present inquiry; the object with which it was introduced, the purpose it was intended to subserve, and the obligations which, according to the intention of the parties contracting to be gained from the whole instrument, it imposed. Meaning it must have; an agreement it expressly professes to be: it must therefore receive a sensible interpretation giving it validity and force, if force it can have consistently with the other parts of the contract.

At the first reading of this clause it is apparent that it was designed to afford a protection to the person who was about doing the work; and, though the expression is “the time shall not be taken,” the meaning is clear that the canal company shall not take the time, &e. for it would be idle to make Randel stipulate against doing an act to his own prejudice. The word “agree” in a deed will make a covenant; and, though in the connexion it is applicable to both parties, it may be referred to that party upon whom the doing or not doing the thing agreed upon devolves. Thus in Holder vs. Taylor 4 Cruise 448. If a lessee for years covenants to repair, &c. provided always, and it is agreed, that the lessor shall find great timber, this is a covenant on the part of the lessor to find the timber, and not merely a qualification of the lessee’s covenant. 1 Roll. Abr. 518; 6 Viner 381, Tit. Cov’t. C. 22, 23, &c. Upon the same principle the agreement here, referred, as it must be to the canal company, is a covenant on their part that they will not take the time within which it shall be incumbent on Randel to complete his contract to be less than four years; or, in other words, that they will allow him four years for the completion of the work.

Thus far there is no difficulty in attaching a sensible meaning to this part of the contract; but it is said that this cannot be the true construction since the canal company are by another part of the contract expressly authorized, on a certain event, to declare the whole contract to be abandoned, and thus virtually to shorten the time allowed by this construction for the completion of the work, and, as the power to put an end to the work within the four years is expressly given, it is forcibly argued that the clause in question cannot be construed into a covenant to allow the four years. If it be true that these parts cannot stand together we must look for some other meaning to that one which is the subject of construction; but let us see if they cannot be construed together so as to harmonize and each have force, ut res magis valeat quam per eat.

The clause in the contract that authorizes the canal company to annul it precedes the clause now under consideration; and the latter appears to be rather a qualification or restriction of the former. That is as follows: And it is further agreed that if the opinion of the engineer in chief for the time being, in the employ of the party of the second part (the canal company) shall be that the party of the first part refuses or unreasonably neglects to prosecute this contract, such engineer may certify the same to the said party of the second part, and, on his certificate, the said party of the second part shall have the power of determining that he has abandoned it; and such determination shall altogether exonerate the said party of the second part from every obligation imposed on them by the said contract, except to pay as aforesaid for work already done.

This affords a key to the phrase “shall not take the time” &e. about which there has been so much refining. The company were authorized to judge of the diligence of the contractor, and by necessary consequence to determine the time necessary for him to complete the work. In reference to this power they add a covenant that they will not take the time for this purpose to be less than four years. And a very reasonable stipulation it was, even though the company still retained the power to judge of the diligence of the contractor, and to turn him off for unreasonable negligence. Time enters materially into this question of diligence, and without restriction in point of time the company might have required of Randel such extraordinary diligence as to complete the work in a much shorter period than four years. The provisions stand well together. The plff. undertook to make and complete a certain stipulated portion of the canal, and the defts. undertook to compensate him for the work in a specified manner. It was a work of great labor on the part of the plff, and it was all important to the defts. that it should be completed in a reasonable time; and therefore they introduced the clause in the contract, that if the engineer in chief should be of opinion that Randel unreasonably neglected to prosecute the work, and should certify that opinion, they, the canal company, should have the power to declare the contract abandoned, and thus to annul it. And, on the other hand, as the work which the plff. had undertaken to perform was one of great labor, requiring large expenditures of money and the necessary consumption of considerable time, it was deemed proper for his security to insert the understanding and agreement “that the time within which it shall be incumbent on the plff. fully to perform and complete the said contract, should not be taken to be less than four years from and after,” &c.

This' is obviously not a mere covenant on the part of Randel, that he would complete the work within the time. If that only had been the intention of the parties, a different form of expression would have been used. The defts. say it is not a covenant on their part which binds them to any thing. Why was it introduced, forming as it does a distinct clause in the contract, if it were not intended to be binding on the party using the language to some efficient purpose? It is obviously not the language of Randel to the canal company. If it was designed merely as his covenant to the company to complete the.canal within four years, other words would necessarily have been used, such perhaps as these: it is agreed that the said John Randel shall complete the work within four years. On the contrary, the words employed (in the instrument are, it is agreed that the time within which it shall be incumbent on him fully to perform and complete the said contract, shall not be taken to be less than four years. Who speaks this? The canal company. Then for what purpose is it spoken? In a solemn contract under seal, we are not to reject these words as senseless and having no meaning, as a mere abstraction as it has been called at the bar, not binding upon the party using them to any efficient púrpose, or to any beneficial end to the party to whom they are addressed. In no case shall words be rejected as senseless, if a meaning can be attached to them consistently with the intention of the parties. This is a distinct, separate and independent clause of the contract. We may therefore infer that it was deemed important by the parties for some end or purpose. They had some design and intention; and it is our business to ascertain this intention, not from this isolated clause only, but if necessary from the whole instrument, and according to the reasonable sense of the words. If there be any ambiguity then such construction shall be made as is most strong against the- covenantor, for he might have expressed himself more clearly. The meaning of this clause we conceive to be simply this, that the canal company undertook not to do any act by which this contract should be taken out of the hands of the plff. nor would declare the contract abandoned, nor compel him to leave the work short of the stipulated time, unless the engineer should be of opinion and certify that he refused or unreasonably neglected to prosecute the work. In that event, and in that event only, could they declare the contract abandoned and annulled, and proceed to dispose of the subject matter, (to use the language of the instrument,) in the same manner as if the contract had never existed. When the plff. undertook to perform this work, and the defts. agreed to pay him the stipulated price, he acquired certain rights which the canal company could not violate with impunity. ■ From the perform anee of this contract he might have acquired great profits. That he believed the contract to be advantageous is evident, or he would not have entered into it. Without this stipulation as to time, the law would have given him a reasonable time to execute his contract; but he did not choose to rely upon this, but stipulated for a given time. The time therefore, became the agreement of the parties, and every agreement under seal is a covenant, for the breach of which this action will lie, and all other remedies are extinguished. For where a party agrees under seal to do or forbear to do a thing, the action of covenant is the only remedy for a violation of the agreement where damages are unliquidated, and depend in amount on the opinion of a jury, and all other remedies are excluded.

With this understanding of the contract the breach sets forth that the said company did, &c., “take the time within which it should be incumbent on the said John Handel, jun., fully to perform and complete the said contract to be less than four years,” &c., and to this the defts. not relying on any certificate of negligence and consequent abandonment of the contract—admitting the facts—demur in law, and present the question to the court whether the plff. on the present state of the pleadings has shown a legal cause of action. According to our construction of the contract he has. We have seen that the canal company covenanted not to take the time within which Handel should finish the work, to be less than four years; that is, according to our construction, to give him four years to do it in; he at the same time agreeing to use the necessary diligence for that purpose, and that the engineer of the company might certify the want of such diligence, and upon his certificate the company might avoid the contract. Without such certificate and avoidance the company were not authorized to abridge the time, or take it to be less than the time specified, and the doing so is a breach of their contract, actionable in law.

We are next to consider whether the breach of this covenant is set out with sufficient certainty. The special causes of demurrer are “that there is no issuable fact presented by the said seventh count, and that it is not stated or set forth how or in what manner or particular, or by what act or matter the said defts. did take the time within which it should be incumbent on the said John fully to perform and complete his said contract to be less than four years,” &e.

The general rule on this subject is that the breach may be assigned in the words of the covenant, if such general assignment necessarily amounts to a breach. This qualification, which how ever is not usually appended to the rule as laid down in the books, embraces all those cases which are admitted to be exceptions to the general rule; that is, they are cases where a general negation of the words of the covenant would not necessarily constitute a breach. 1 Wheat. Selw. 375; 8 East 81-4. And there is another important rule equally violated by the excepted cases, that more particularity is required in assigning the breach where the matter rests peculiarly in the knowledge of the party pleading. Thus in covenants for quiet enjoyment, and of warranty, the general assignment is insufficient, for it doth not appear that the party was disturbed or evicted by lawful title; and it lies peculiarly in the knowledge of the party alledging the eviction to show by what title he was evicted. So in covenants against incumbrances.

The assignment should place sufficient on the record to show the court that, if true, it amounts to a breach of the covenant; and to give the other party reasonable notice of the matter relied on, not of the proof of that matter, but of the thing to be proved. The first is done whenever a general negation or affirmance of the words of the covenant amounts to a breach; particularity in the last is excused where the matter lies properly in the knowledge of the other party, or where it tends to great prolixity.

Recurring to the construction we have given to this part of the agreement, it will appear that the covenant of the company in effect is to allow Randel four years for the completion of this canal, with a certain qualification not now necessary to mention. The breach of this covenant is that the company did not allow him the four years, and this presents an issue proper for the consideration of a jury. At all events it amounts, if true, to a breach of the covenant, and as the facts constituting the breach are entirely within the knowledge of the defts., the purposes of notice to them do not require a more particular statement. We here leave the words of the contract and of the breach, and substitute what we understand to be their meaning; but it differs not whether the assignment is that the company did not allow four years, or did take the time to be less than four years.

(Prevention.) That part of the contract declared on in the eighth count is as follows:—

“And it is further agreed as aforesaid that in case the party of the first part shall, from the default of the party of the second part in any particular, be prevented from pursuing the due and best mode of executing this contract, or from entering upon or flooding lands for that purpose, the pecuniary damage sustained by him in consequence thereof shall be certified by the engineer of the party of the second part for the time being; and, on his certificate which shall be final and conclusive between the parties, the party of the second part shall make to the party of the first part such reasonable compensation and allowance as by the said certificate may be ascertained and fixed.”

The breach assigned on this clause is, that, although Randel was from the default of the company prevented from pursuing the due and best mode of executing the said contract, the pecuniary damage sustained by him in consequence thereof hath not been certified by the engineer of the said company for the time being: and the sufficiency of this breach, in a general point of view, depends on the question whether the above clause amounts to a covenant on the part of the company that their engineer should certify this damage whenever it should arise, or whether it is a reference by both parties to a common umpire. In looking through this whole contract it is to be observed that the canal company have generally shielded themselves by confining their responsibilities to the adjudication of their own engineer, who is frequently made the sole arbitrator and umpire eo nomine; and in this instance also, they have limited the amount of their liability to the certificate of that officer. But the question here is whether, in a given case arising from their own default, and where Handel’s redress was confined in amount to the certificate of their officer, they have not covenanted that such officer should do that without which Randel could have no redress. The damage to the plff. arises from the default of the company. The amount of that damage is to be ascertained by their own officer; appointed by them, responsible to them, and removable at their pleasure. Randel agrees to be bound by this; it is his contract and, prudent or imprudent, he must abide by it; but is it to be conceived, is it a sensible construction of the contract, that he relied on this remedy, thus restricted, without any obligation on the part of the company that their agent should certify at all. Unless the words of the contract clearly convey this meaning, the absurdity of the arrangement would prohibit such a construction. Those words certainly do not require such a construction; if indeed they do not directly favor the opposite position. It is agreed that in case Randel shall from the default of the company be prevented from proceeding in the best manner, the pe-. cuniary damage shall be certified by the engineer of the company for the time being, &c. The effect of the certificate is afterwards defined; but on these words—either on a fair reading of the single sentence, or connected as it should be with the context in a reasonable construction of the whole contract, it does amount, in our view, to an agreement on the part of the company that their engineer should certify the damage in case any such arose from their default. This construction moreover derives force from the clause almost immediately following, wherein a reference to arbitration is expressly made of all matters of dispute or difference in opinion in relation to the contract or arising under it. The subject matter of this clause was not suitable for reference; a dispute in relation to it could not have been anticipated; it was agreed by both parties that in case of damage from certain specified causes, the amount thereof should be ascertained by certificate; and as Randel agreed that the agent of the other party might make that certificate, and that he would be bound thereby, it reasonably if not necessarily followed that the company engaged the certificate should be made.

If this be the meaning of the contract, the breach thereof is well assigned in the words of the covenant according to the principles before stated, and which are fully recognized in the case of Gale vs. Seed. 8 East 80. The breach in that case is strikingly similar to this. The deft, covenanted to employ exclusively the plff. to make cordage for his friends, and not to employ any other person, nor to carry on the business of rope-maker, &c. The breach was that the deft, did carry on the business of rope-maker, &c., and made cordage for divers persons, &c., and did not nor would employ the plff. to make such cordage but neglected so to do, and employed divers other persons, &c. The deft, demurred, assigning for cause “that plff. had not shown any and what particular person or persons for whom the deft, made cordage; or any and what particular quantities or kinds of cordage the deft, so made; nor in what manner or by what acts he carried on the business of rope-maker, &c. Lord Ellen borough said the answer was that as the facts alledged in the breaches lie more particularly in the knowledge of the deft, than of the plff. there was no occasion to state them more particularly. So in this case the causes assigned for demurrer aré that it is not stated in what particular matters or things the alledged default of the said defts. consisted, took place or existed; or how or in what manner or by what act of the said defts. the said John was prevented from pursuing the due and best mode of executing his contract. The’answer is that these facts lie more properly in the knowledge of the defts. than of the plff., and need not be stated with more particularity.

Another ground was taken in the argument, though not assigned in the demurrer, against the sufficiency of this breach; that there is no averment that Randel had sustained any damage by being thus prevented from pursuing the due and best mode of executing his contract. To this it was replied that the damage was a necessary consequence upon the prevention, and was to be inferred. But this is deducing from the facts stated, another fact material to the breach, and without which the breach is not perfect. It is true that the failure to certify and not the failure to pay, is the gist of the complaint;, but how does it appear from the facts here stated on this record that there was any damage sustained, or any to certify? The covenant is, as we have construed it, that in case Randel should, from the default'of' the canal company, be prevented from pursuing the due and best mode of, executing his contract, &c., their engineer should certify the pecuniary damage sustained by him in consequence thereof. Now how ddes the allegation that he was so prevented, and that the company’s engineer did not certify, cover thé whole ground without an. averment that damage was sustained. The engineer was not by the contract, to certify damage as the necessary result of the prevention, but only “the pecuniary damage sustained in consequence thereofand though it may be true that the plff. was prevented as he alledges in his breach; and though damage may be the probable consequence of such prevention, yet it should have been stated that such damage was the consequence of and did arise from the prevention to bring the assignment within that rule before alluded to, which requires that so much should be placed on the record as that if true, there must have been a breach of the covenant, and the plff. must have a cause of action. An important fact is here left to be inferred, and the breach is consequently not well assigned. That fact Is essential to the plff’s. cause of action, and the failure to aver it is bad on general demurrer. Judgment must be rendered against the demurrant on the seventh count, and in his favor on the eighth. And let these judgments stand, as both sides have heretofore been allowed to amend repeatedly; and they have come down to the argument and to judgment on these demurrers with their eyes open. There will never bean end to this cause if the parties are to demur when they please, and amend as often as the demurrers shall be ruled against-them.

The counsel for the canal coznpany moved for leave to withdraw their demurrers and to plead over, which was refused by a majority the court without argument, (a )

(Judgment.) The judgment on the demurrers was entered in the following form:—

“This cause having been set down for argument at the May term 1833, on the demurrers to the fourth and fifth additional counts in the plff’s. declaration, being the two last counts in the said declaration, on the day assigned for argument thereof, to wit: on the Satur day of the first week of the said term here comes as well the said John as the said The Chesapeake and Delaware Canal Company, by .their attorneys aforesaid, and on motion of the attorney of the said company desiring further time, a day further is given to the parties aforesaid here until the Saturday next after the said day so assigned for argument as aforesaid, and during the said term; on which day here comes as well the said John as the said The Chesapeake and Delaware Canal Company by their attorneys aforesaid, and hereupon the premises being seen and by the judges here fully understood, and the said demurrers being fully argued on both sides by the said attorneys on the said day, and also on Monday, Tuesday and Wednesday of the succeeding week; and because the said judges here will advise themselves further of and upon the premises before they give judgment thereon, a day is further given to the parties aforesaid here until the ninth day of June next after to hear their judgment thereon, because the same judges here, thereof, not yet, &c., to which said last mentioned day the said court is for this purpose adjourned: on which day here comes again as well the said John as the said The Chesapeake and Delaware Canal Company by their attorneys aforesaid, to hear the said judgment: and hereupon the said premises being again seen and considered, and it appearing to the said judges that the demurrer of the said company to the said fourth additional count, being the seventh count in the amended declaration aforesaid contained, which confesses the matters in the said count mentioned, to wit, the said contract or articles of agreement so set out on oyer as aforesaid, and the fact that the said The Chesa peake and Delaware Canal Company did on the first day of October, A. D. 1825, to wit, at Newcastle county afsd. and on the 5th day of June, A. D. 1824, and on divers other days and times between the day of the date of the said articles of agreement and the day of bringing this suit, to wit, at Newcastle county aforesaid, take the time within which it should be incumbent on the said John Randel, jun., fully to perform and complete the said contract to be less than four years from and after the first day of May next ensuing the date of the said articles of agreement, as the plff. in the said last mentioned count hath declared; it seems to the said judges that the said fourth additional count of the said declaration as amended, being the seventh count of the said declaration and the matters therein contained are sufficient in law, for the said John to have and maintain his aforesaid action thereof, against them the said defts., as the said John hath above thereof alledged; wherefore the said John ought to recover, and the court doth hereby order and adjudge that he do recover his damages by reason of the premises and of the non-performance of the said breach in the said fourth additional count mentioned against the said The Chesapeake and Delaware Canal Company, together with such costs as the law by reason of the premises will allow": but because it is unknown what damages the said John hath sustained on that occasion the judges who give this interlocutory judgment do, at the motion of the plff.’s attorney in this action, make an order in the nature of a writ of inquiry to charge the jury attending at the next court after the said judgment is given to inquire of the damages and costs sustained by the plff. in this action by reason of the premises; which inquiry shall be made and evidence given in open court and after the inquest have considered thereof they shall forthwith return their inquisition under their hands and seals to the end that the court may proceed to judgment as upon inquisition of that kind returned by the sheriffs, agreeably to the act of the general assembly in such case made and provided.

Clayton, Ingersoll, Roget's and Read, for plaintiff. Frame and Jones, for defendants.

And because the said plff. in the said fifth additional count in the said declaration, being the eighth count in the said declaration contained, hath not set forth or shown any sum or amount of pecuniary damage by him sustained by reason of the premises in the said count mentioned, it seems to the court here that the said last count of the said declaration and the matters therein contained are not sufficient in law for the said John to have or maintain his afsd. action thereof against them the said defts., and that they the said defts. are not bound in law to answer the same; wherefore by reason of the insufficiency of the said eighth count of the said declaration the demurrer of the said defendants to the said count is allowed by the court here and of the said last count the said defendants have judgment.”

Tidd lays down the rule to have been formerly that after a demurrer the court would - not permit an amendment without the consent of the adverse party. But he says that rule is relaxed, and" if is now settled that after demurrer and joinder, either party may amend of course; and even where the proceedings are entered on record and the demurrer has been argued, the court will give leave to amend where the justice of the case requires it, and there is any thing to amend by. But this is altogether discretionary in the court, and it is not usual to amend after demurrer argued, and the opinion of the court is known. 1 Tidd’s Practice 656; Hardwick 171; 1 Lord Raymond 668; 2 Strange 734, 954, 976; Hardwick cases, &c. &c., vid. infra.

Jordan vs. Twells, Cases Temp. Hardwick, 171, where the plff. has lost a trial the deft, will never be admitted to amend his plea.

Crockett vs. Jones, 2 Strange 734. After argument on demurrer the plff. was allowed to amend his replication by entering continuances. Hales vs. Hales was cited where such an amendment was refused by C. B. Sed Per Cur. The authorities of our own court warrant it, and let the replication be amended on payment of costs.

Bishop vs. Stacy, 2 Strange 734. “After a special demurrer and joinder and argument, the plff had leave to amend the bill upon the file. And this was granted upon debate.”

Rex vs. Ellames, 2 Strange 976; more full in Cases Temp. Hardwick 42. Information in the nature of a quo warranta against the deft, as mayor of Chester. He justified under a charter by which the mayor is to be chosen by the citizens of Chester and suburbs; and laid his election by a majority of the citizens of Chester. Demurrer and joinder: and when the case came into the paper, deft’s, counsel moved to amend by inserting the suburbs, and showed by affidavit that the prosecutor had not lost a trial, &c., “and after long debate and many cases cited, the court gave leave to amend and chiefly for reasons peculiar to this case. ”

Robinson vs. Rayley, 1 Burrows 321. In this case, which is also cited by Tidd, the court refused the leave to amend.

Douglass 330 and 620 are both cases of special demurrer merely.

Solomons vs. Lyon, 1 East 372. Deft, pleaded a sham plea; plff. replied and deft, demurred specially, The court here allowed plff. to amend because the plea was a sham one, and in Pierce vs. Blake, Salk. 515, they threatened to fine an attorney for false pleading.

After argument on demurrer, plff. moved to amend his narr, which was granted, the merits of the case not coming in question on the argument, only the form of the pleading. Secus, after argument on the merits and nothing to amend by. Barnes 9; Impey 297.

Sayer’s Rep. 117. In an action against bail the court refused to give leave to withdraw a demurrer and amend, after the demurrer had been argued and the opinion of the court known.

Giddins vs. Giddins, Sayer’s Rep. 316, cited in Tidd, and mentioned in Burrows’ Rep. as a case of amendment after the opinion delivered; was after argument only. It was on a special demurrer; the court had given no opinion and the rule was made absolute without defence.

Abercombie vs. Parkhurst, 2 Bos. & Pul. 480. On general demurrer, the court gave their opinion against the demurrer and refused leave to amend.

Hosier, &c. Ex’rs. vs. Lord Arundel, 3 Bos. & Pul. 11, 12. Special demurrer. The court expressed their opinion in favor of the demurrer,. Shepherd then applied for leave to amend, “But the court said, this was not a case in which they ought to depart from a general rule that after argument amendments are not ¡mowed,” Sfc.

Hamilton vs. Wilson et al, 1 East 391. General demurrer. The court expressed their opinion against the demurrer. '•'■Holroyd then asked leave to amend, which (it being after argument on the demurrer,) was denied. And judgment for the deft.”

Cooke vs. Birt, 5 Taunt. 765; 1 Marsh. 333. After demurrer argued the court would not permit the plff., in an action against the sheriff, to amend. And where a plea was held bad on argument on a special demurrer, the court of Common Pleas refused amendment although it was stated that the matter of the plea was a bona fide statement. 7 Moore 244; 1 Harrison’s Digest 50.

Fisher vs. Cowgill Ex’r. of Allston. Debt on testamentary bond suggesting breaches. Deft, demurred to the narr. After joinder but before argument Clayton asked leave to amend his narr, which the Supreme Court (Johns, C. J.) refused. Kent, October term, 1830.

Easton use Russel vs. Jones, post page Supreme Court, Newcastle, March term, 1831. After demurrer argued, and the court (by Harrington Chief Justice,) had pronounced their opinion, the deft’s, counsel moved for leave to plead over, which was refused. The demurrers in this case were general and special.

Cubbage vs. York. Common Pleas, Kent, November term, 1829. The deft, demurred specially to the plff’s. declaration; and, after argument, the court granted the plff. leave to amend because the defect was matter of form only, and judgment had not been pronounced. They said expressly that it was because the declaration was ill only on special demurrer.

See the case of State use of Godwin vs. Collins, post.