Stephen, J.
delivered the opinion of the court.
This suit was instituted upon a covenant,^entered into between the parties on the 12th of September, 1825; and after referring to the pleadings, the judge said—the question which arises in this case, is upon the true construction and character of the covenants contained in thé deed, or instrument of writing upon which this suit was instituted. We may say in limine, that whatever may have been the principles contained in the more ancient decisions, upon the legal effect and operation of contracts of a similar description, the strong -leaning of the courts [255]*255iu more modern times, has been to disencumber themselves from the fetters of technical rules, and to give such a rational interpretation to the contract as will carry the intention of the parties into full and complete operation, in 8th Term. Rep. 371, Grose, Justice says, “the question is, whether these covenants be dependent or independent, and that must be collected from the apparent intention of the parties to the contract. There is certainly some confusion in the books on this subject, some of the older cases leaning to construe covenants of this sort to be independent, contrary to the real sense of the parties, and the true justice of the case. .Bui the later authorities convey more just sentiments, and the case of Kingston vs. Preston, was the first strong authority in which they prevailed in opposition to the former. ” In this case of Kingston vs. Preston, Ld. Mansfield says, “that the dependence or independence of covenants, was to be collected from the evident sense and meaning of the parties, and that however transposed they might be in the deed, their precedency must depend on the order of time in which the intent of the transaction requires their performance.” Alluding to the case of Kingston vs. Preston, in a subsequent part of his opinion, Mr. Justice Grose says, “1 have since found, that that was not the first case, where those sentiments began to be entertained; for it appears from a late publication of reports from the manuscript of Ld. Chief Justice Wittes, that in a case of Thomas vs. Cadwalader, Willes Rep. 496, his lordship noticed the injurious tendency of the doctrine, which had before that time prevailed in those cases, and seemed very desirous, that the governing rule should be so to construe such covenants, as that the real intention of the parties should be carried into effect, to obtain the true justice of the case. This was afterwards done in the ease of Kingston vs. Preston, and that has since been settled to be the rule in many cases.” Mr. Justice Grose then concludes his opinion by observing, that “the intention of the parties is, or is assumed to be, the governing principle of all the [256]*256late determinations.” In the same case, Mr. Justice Lawrence observes, “whatever the form of words may be, if we can collect from the face of the instrument, that the whole was to be performed by the plaintiff before the money was to be paid, nothing short of the performance of the whole can enable him to sustain this action for the money.” So, in the same case, Ld. Kenyon, speaking of the cases which had been cited in the argument, says, “the general rule which governs them all is, that every man’s agreement is to be performed according to his intent, as far as that is to be collected from the particular instrument.” A similar principle is laid down in 6 Term. Rep. 669, where Ld. Kenyon says, “it has been frequently said, and common sense seems to justify it, that conditions are to be construed to be either precedent or subsequent, according to the fair intention of the parties, to be collected from the instrument, and that technical words, (if there be any to encounter such intention, and there are none in this case) should give way to that intention.” According to these authorities, the important inquiry in this case is, what was the intention of the parties to be collected from the covenant entered into between them. It appears by the pleadings in the cause, that the plaintiffs, for the consideration therein mentioned, agreed with the defendants that they would furnish the materials, and construct, make, fit, and put up in a good, faithful and workmanlike manner, a high pressure steam engine of a particular description, the whole to be finished and delivered at the factory of the defendants, and there properly fitted up, and put into effective operation, by, and at the proper expense and charge of the plaintiffs, within ninety days from the day of the date of the said agreement; in consideration whereof, (that is, in consideration that the plaintiffs would perform their part of the contract, by making and putting up the engine as stipulated ;) the defendants bound themselves to pay the sum of thirty-five hundred dollars/or the said engine, so as aforesaid to he constructed, made, and put up in the following [257]*257proportions, to wit; to pay the sum of $100 each week as the work progressed, until the same should, be finished, and put up as aforesaid, when the sum of twelve hundred dollars, including the weekly advances aforesaid, was to be paid. The residue of the consideration, that is to say, twenty-five hundred dollars, was to be paid in three equal instalments, at six, nine, and twelve months, from and after the said engine should have been put into full and effective operation, to the full extent and meaning of said covenant; and the defendants covenanted, that they would provide and pay for the brick and stone work, necessary for the putting up the boilers aforesaid, and likewise pay for the brick and stone; and the plaintiffs agreed to warrant and insure the faithful performance of the said engine, for the term of twelve months from time it should be put into operation as aforesaid. Upon the true construction of this contract, was it the understanding of the parties that the engine was to be completed in ninety days, as a condition precedent to the payment of the three last instalments, amounting to the sum of twenty-five hundred dollars ? In the first place, it is to be observed, that the parties contemplated the completion of the engine, before the weekly payments would amount to the sum of twelve hundred dollars, because those payments were to be deducted from that sum; and the balance to be paid when the work should be finished, and put up according to contract, or to use the language of the deed of covenant, “should be finished, and put up as aforesaid.” If then, it was the evident intent and meaning of the parties, that the engine should be completed, and put up before the weekly payments would amount to the sum of twelve hundred dollars; it is demonstrably clear, that the time limited for the completion of the work was of the essence of the contract, and that the plaintiffs were not entitled to recover the twenty-five hundred dollars under the covenant upon which their action was founded, because those instalments vrere not to be paid until “after the said engine should have been put into ful [258]*258and effective operation, to the full extent and meaning of said covenant,” which, upon every principle of correct interpretation, would seem to require a rigid compliance with the stipulations of the contract, as well in relation to the time fixed on, as to the other particulars; the words used being sufficiently strong, and comprehensive to indicate such to have been the sense and meaning of the parties. That time was of importance in the contemplation of the parties, and formed a material ingredient in the constitution of their contract, further appears from that part of it,by which the plaintiff’s covenant to “ warrant and insure the faithful performance of the said engine, for the'term of twelve months, from the time it should be put into operation as aforesaid.” Nor do we think that the failure to complete the engine by the time limited, is excused by the non-performance of the defendants of their covenant, by which they bind themselves, “to provide, and pay for the brick and stone work, necessary for putting up the boilers aforesaid, and likewise pay for the brick and stone,” because it was not necessary to do that part of the work, before the boilers would be in a state of readiness to be put up; of "which fact, it was the duty of the plaintiffs to inform the defendants in due and proper time, as they best knew when such part of the work would be wanted; and until it should become necessary, it was not the duty of the defendants to do an act which might ultimately prove to be vain and nugatory. In this case, the words in “consideration whereof,” must we think be construed to refer, not to the promise or undertaking of the plaintiffs to do the work, but to the actual performance of the thing, stipulated to be done; for in 4 Term. Rep. 764, Ld. Kenyon was of opinion, that the words “in consideration of the premises,” meant in consideration of the actual transfer of the stock, and not in consideration of the covenant to transfer. So, in 1 Tidd’s Prae. 443, it is said, “the words by which conditions precedent are commonly created, are, for and in consideration of iia quod proindef íyc, A by his [259]*259agreement was to complete a certain piece of road, on or before the 261b of October, 1810, and B covenanted to pay him for completing the whole of the work, $6000, to be paid in instalments as the work progressed. It was held that A could not maintain an action for the whole consideration money, without averring, and proving a performance of the whole work, and that if he brought his action for a rateable part of the money, he must show a rateable performance. The above case may be found in 10 Johns. 203, Cunningham and another vs. Morrell, where Chief Justice Kent delivered the following very sensible and learned opinion, in which he seemed to think that in the case of Terry vs. Buntze, the court pushed the doctrine of mutual and independent covenants too far. He says, “we cannot distinguish this case so as to take it out of the operation of the case of Sears and Fowler, and Havens vs. Bush, 2 Johns. Rep. 272, 387. Those cases were governed by the English decision in Terry vs. Duntze, 2 Hen. Black. 380. But from a more full consideration of the subject, we are now led to believe, that the court of C. B. carried too far, the principle of mutual and independent covenants. It is true, that if by the terms of the contract, the money is to bo paid by a day certain, and which is to happen before the performance of the service, or by a day certain, and there is no day certain for the performance, the performance is not a condition precedent, and the party may sue for the money without averring or showing performance. This is what was said by Ld. Holt in the ease of Thorpe vs, Thorpe, 12 Mod. 455. 1 Ld. Raymond, 662. And he went no further with the doctrine of mutual covenants. Where it be repugnant to the contract to make the service a condition precedent, the parties, he observes, are left to mutua remedies, on which by the express words of the agreement they have depended. The cases which he cites of Pool vs. Tolchesser, 48 Edward, 111, 2, 3, and Pordage vs. Cole, 1 Baund. 319, are to this effect, and in both of them, the entire consideration was to be paid by a fixed time, and [260]*260which might precede the service. Ld. Holt further said in that case, “what is the reason that mutual promises shall bear an action without performance ? One’s bargain is to be performed according as he makes it. If he makes a bargain and relies on the other’s covenant, or promise to have, what he would have done to him, it is his own fault. If the agreement be that A shall have the horse of B, and A agree that B shall have his money, they may make it so, and there needs no averment of performance to maintain an action on either side; but if it appear by the agreement, that the plain intent of either party was to have the thing to be done to him, performed, before his doing what he undertakes of his side, it must then be averred. After this rational explanation of the rule, we cannot but think it was misapplied, or carried to an unreasonable length in Terry vs. Duntze. The covenant in that case was, that the plaintiff should finish the building by a given day, and the defendant was to pay the consideration by instalments as the building should proceed, and according to a certain and specified state of advancement, and the remaining part of the consideration when the building should be completed 5 but because two several sums of money were to be paid before the whole was performed, and when only a part of the service was performed, the court held the covenants to be independent, and as we understand the case, aiid as the reporter understood it, that the plaintiff might maintain his action for the entire consideration, without any averment of performance. This was contrary to the plain understanding of the parties, and was not warranted by any of the cases referred to. It was sufficient for the plaintiff to have shown the advance of the building as stipulated, to have entitled him to the instalment then to be paid, but to have entitled himself to the last instalment, he was bound to aver, and show a completion of the contract. The good sense and justice of the ease, as it appears to us, required this construction, and the meaning of the parties could not have been mistaken. The error in that case, and in the [261]*261two cases in this court which followed it, consisted in holding the covenants to be independent throughout, because a part of the consideration money was to be paid before the entire service was .to be performed. This might have been the case, if the contract in all those cases had not provided that a certain part of the consideration was to be paid on the completion of the service, and which rendered the service pro imito, a condition precedent. There is nothing unreasonable nor unusual in such an agreement. It has been the constant language of the English courts, that the dependence or independence of the covenants, depended on the good sense and meaning of the contract. Their precedency, said Ld. Mansfield, must depend on the order of time, in which the intent of the transaction requires their performance. A mechanic generally stands in need of advances from time to time, in aiding- him to procure the materials to carry on his work, and the employer if prudent will generally reserve a considerable payment until the work be completed, and to depend on such completion. But if all these payments can be demanded without performance, merely because a part of them were to be made as the work advanced, it would be making the intention of the parties subservient to technical rules. The parties have an undoubted right, if they please, to make their covenants dependent or independent throughout, or to make the covenants independent as to one payment, and dependent as to another. They have a right to mould their contracts so as to suit their mutual convenience and interests, and when the courts can ascertain their meaning, they are so to construe the contract as to give effect to that meaning, provided the purpose be lawful. For these reasons, I apprehend that we have yielded with too much deference to the decision in Terry vs. Duntze, and did not sufficiently advert to the evil consequences of the doctrine in the extent there laid down. It becomes then our duty to limit the operation of that case, and of the two cases in this court which were founded upon it, so as to belter to [262]*262fulfil the intention of the contract, and the justice of the case ; and in doing this, we may be permitted to consider it as some apology for those decisions, that we at the time reposed on the authority of so respectable a tribunal as the C. B; and especially when its decision was supported by ' so distinguished a judge as Buller, who was equally eminent for a clear and sound judgment, and for diligent and profound inquiry.
“Having thus freed ourselves from undue embarrassment in considering the real merits of this case, we say, that as the road was to be completed on or before the 20th of October, 1810, and as the defendant was to pay therefore the sum of $6000, to be paid on or before that day, in instalments as the work progressed, the just construction of the contract is, that if the plaintiffs will go for the whole consideration-money, they are bound to aver, and show a performance of the whole work, and if they go for a rateable part of the money, they are bound to show a rateable performance.” We have extracted thus largely from the opinion of that eminent jurist, Chief Justice Kent, because we think it supported, not only by correct legal principles, but by the plainest dictates of common sense, and because it goes far to rescue the law, which ought to be considered a rational science, from the imputation of gross injustice and palpable absurdity. One other decision only, and that of modern date, and made in one of our sister States by a very learned and distinguished tribunal, will be referred to. It will be found in 8 Mass. Rep. 80. In that case, Parker, Ch. J., in delivering the opinion of the court, also adverts to the case of Terry vs. Buntze, and uses the following strong expressions : “In one case of modern date, it was decided, that if a man covenants to work upon a house, and the owner covenants to pay him by instalments, and that the last instalment shall be paid when the house is finished, the workman may recover the last instalment, whether the house shall be finished or not. This seems to be turning a man’s contract into something totally different from his words [263]*263and intentions in the contract; and yet in the same book it is said, that the intent of the parties is to govern in the construction of the covenants. The principal reason given for this decision is, that some of the instalments were to be paid before the house was finished. But because a man had engaged to pay one certain sum of money before his house was finished, therefore, he should be held to pay another sum, which he had not engaged to pay, until his house should be finished, seems id be very questionable as a logical, whatever it may be as a legal conclusion.” The cases of Goodesson vs. Munn, 4 D. and East. 61. Campbell vs. Jones, cited in the argument; Glazebrook vs. Woodrow, 8 D. and East, 366; and Heard vs. Wadham, 1 East, 619, all show a disposition on the part of the judges, to break through the bonds which some old eases had imposed upon them, and to adopt what Ld. Kenyon, in one of the cases calls the common sense doctrine.—'that the true intent of the parties, as apparent in the instrument, should determine whether covenants or promises are independent, or conditional, instead of any technical rules of which the parties were totally ignorant, and the application of which, would in most casos utterly defeat their intentions. We think therefore, that the plaintiffs were not entitled to recover the money sued for by them, upon the true construction of the covenants entered into by them. Whether they had not their remedy in a different form of action, is another question. If after the work was done, though not pursuant to the contract, the party for whom It was done, accepted it, it would seem right and proper, that he should pay for it, what it was worth. This we think, justice would require, and it is believed, that the principles of law do not forbid it. To this effect the law is stated to be in 4 Cowens Rep. 564. It is there said, that “if there he a special agreement under seal to do' work, and it be done, but not pursuant to the agreement, either in point of time, or i-n any other respect, the party who did the work may recover upon the common counts in assumpsit, for the work and labor, if the work be [264]*264accepted by the party for whom it was done. The workman cannot maintain covenant, unless he perform the work strictly within the time. By permitting the plaintiffs, after knowing that the work was not completed in time, to proceed and finish it, he waived all right to object on that ground, and the law implies a promise on his part, to pay what the labor was reasonably worth.” So, in Burn vs. Miller, 4 Taunt. Rep. 745, we find the same principle recognized. “A lessor contracted to pay his tenant, at a valuation for certain erections, pursuant to a plan to be agreed on, provided they were completed in two months. No plan was agreed on, and after the condition broken, the lessor encouraged the lessee to proceed with the work, and held that the lessee might recover as for work and labor, on an implied promise, arising out of so many of the facts, as were applicable to the new agreement.” In this case the court say, “It is a settled rule, even in case of deeds, that if there be a condition precedent in a deed, and it is not performed, and the parties proceed with the performance of other parts of the contract, although the deed cannot take effect, the law will raise an implied assumpsit. Upon this ground it is, that freight is daily recovered in actions of assumpsit, on implied promises substituted for the charter parties by deed. And here, though the plaintiff cannot put his case upon the written agreement, he may upon the agreement raised upon so many of the facts of the ease, as are applica-r ble.” Upon the whole, we are of opinion, that the judgment of the court below was correct, and that the same ought to be affirmed.
JUDGMENT AFFIRMED.
Gill, for the appellants, after the affirmance of the above judgment, moved for a procedendo, upon the following grounds.
The 10th sec. of the act of 1826, ch. 200, declares, that upon any appeal, or writ of error, the Court of Appeals, shall give judgment, or award a procedendo, for a rehearing [265]*265of the case, as shall appear to be just. Prior to this law, and by the act of 1806, ch. 90, sec. 1, the right to award a procedendo depended upon the reversal of the judgment of the county court. The act of 1826 establishes a different, and more liberal rule. It submits the subject to the sound discretion of the court, to its moral jurisdiction, and directs, that the procedendo shall be awarded, when there is evidence in the record, either by facts, or pleading, that the plaintiff’ has a just claim. In this case, it is apparent, from the record, that the defendants have had the substantial benefits of the contract, and have not paid for them.
Under the act of 1826, the court is not trammelled by technical restraints of any sort, and it may be fairly inferred, that the legislature designed to give a re-hearing, in connexion with the right to amend the pleadings, to the same extent as before had been awarded upon bills of exception, where the judgment of the county court had been reversed. This qualification of a right to the procedendo, is a very fair one. It aids just claims, and provides against accidents and errors growing out of nice questions of pleading. The claim being a just one, the defendant has no right to complain.
If the cause is transmitted to the county court, with leave to amend the pleadings, the plaintiffs could put it in a situation to recover. They could aver an excuse, in proper, and technical form, for a non-delivery of the engine in full and effective operation at Crook’s factory, within ninety days. It could be averred, that after the execution of the contract, and before the expiration of the ninety days, the plaintiffs gave the defendants notice, at their factory, that they, the plaintiffs, were ready, prepared, and willing to put up the said engine, and put the same into operation, and that they requested the defendants to furnish the brick and stone work, a sufficient period before the expiration of the ninety days, to have enabled the plaintiffs to put up, and put the said engine into operation at the said factory within said ninety days, but that the defendants did not, and would not furnish the brick and stone work in season.
[266]*266The second breach of the first count avers, that the plaintiffs were ready and prepared to deliver and properly put up the engine at the factory of the defendants, and to put the same into full and effective operation, on the 11th of December, 1825, but the defendants did not provide the brick and stone work necessary for putting up the boilers, by reason whereof the engine could not be put up on the day, and the plaintiffs were thereby prevented from putting, up the engine. To this breach there was a general demurrer* The state of the pleadings then admit:
1. That the plaintiffs commenced the engine. 2. That they were ready within the ninety days, to put it up at the factory. 3. That the defendants did not furnish the brick work. 4. That the failure to furnish the stone work, prevented the putting up the engine.
Now, these facts show, that the greater part of the work must have been completed, and that the plaintiffs had nearly earned their whole claim, even supposing defendants had furnished the brick work, and that the defendant must have received some notice to furnish the brick work. The plaintiffs, therefore, having in substance, performed their contract,, they are entitled, under the act of assembly, to a new trial.
The county court had several times, before the institution of this suit, decided the broad principle, that time was not of the essence of a sealed contract. In Finley vs. Boehme, 3 Gill and Johns. 42, that point was directly so-decided by that court. These decisions induced the counsel not to bring assumpsit*
Johnson, contra.
Independent of the act of 1830, ch. 186, an act not referred to by the appellants, no provision can be' found, and no case decided, to authorize a procedendo, when the judgment appealed from is affirmed. Had it been otherwise, there would have been no necessity for the act of 1830. The passage of that act is evidence, if any were needed, that a procedendo, in case of affirmance, was before wholly unprovided for ; and the act of 1830 applies only to bills of [267]*267exceptions, and of course not to a ease like the present. But if the court was now, for the first time, called upon to act under the law ©f 1826, it is confidently contended, that the present motion could not be granted. In this case, as in all others, the court can alone look to the record, and to what it discloses. That the plaintiff has a better ease than his pleadings disclose, can only be known by facts appearing in exceptions, or in other parts of the record. When that is not the case, the court can have no knowledge that the case as made by the plaintiff, is not the only case that he can make, and of course, can have no knowledge that justice requires a new trial. In the present instance, the only ground upon which it can be pretended, that the plaintiffs could recover on this covenant, is by supposing a fact to exist, of which no evidence is offered in any part of the record. The court therefore, cannot see that justice requires a new trial.
The only ground on which it is contended that a procedendo should issue, in this case, is the suggestion of the appellants’ counsel, that he believes the fact will enable him to make a better case, than is now presented by the record. It will not escape the observation of the court, that the case of the appellants was brought out in pleading in every variety of form, and that no application was made to the court below to amend, for the purpose of pleading the fact now alleged to exist, and which if it does exist, must have been then known to their counsel. That excuse was deemed by them to be necessary to account for the delay in the completion of the engine is obvious, because the pleadings aver an excuse in different ways. Under such circumstances, to subject the successful party below, to the expense and trouble of a new trial, would be a principle decidedly wrong, and in practice extremely pernicious. Should the precedent be established, it will be difficult to imagine a ease, in which the judgment of the Court of Appeals, will practicality terminate the suit. This, it will be observed, is not a case in which from the record, the court can see that the [268]*268appellants have a better case, than is technically presented, and which is lost to them, from want of mere technical form] but on the contrary, one, in which as far as the court have or can have any judicial knowledge, the appellants are neither legally nor equitably entitled to recover. To go out of the record, and listen to the mere suggestions of the parties, or their counsel, as to the case they will be enabled to present, if an opportunity is given them, is not, cannot be, the duty of the court. No instance can be found, in which even in a court of original jurisdition, a new trial has been awarded, because of the want, at the first trial, of proof of a fact which- the losing party knew of, and might have produced, or by reasonable diligence might have found out. How much stronger does the principle apply, to a motion now made in the court of iast resort, for a new trial, merely to enable appellants to bring forward a fact, which if it exists, they certainly were aware of before the first trial. Besides, look at the practical injustice. The defendants may have had proof fully sufficient to negative the proposed allegation as to notice, as well as all the other matters of excuse, already stated in the pleadings. Relying on the insufficiency of the latter, they demur, and obtain a judgment. This is now affirmed, and it is proposed to send the case back, when for aught this court can know, all the evidence the defendants had, in relation to the whole transaction, is lost to them without any default on their part. Such a course, would certainly not be in furtherance of any prinple of justice.
MOTION OVERRULED BY THE COURT.