H. & N. 843.

WILLIAMS V. F1TZMAURICE

709

[Bramwell, B. It may be that by the word " if" the parties intended to make the performance of the plaintiff's covenant a condition precedent. He referred to Grey v. Friar (4 H. L. 565).] H. Mills, in reply. Unless the covenants are treated as independent the plaintiff may get nothing, because he may fail in the performance of the covenant to give up possession of the agreement, by reason of its performance having become impossible: Grimman v. Legge (8 B. & C. 324). POLLOCK, C. B. The plaintiff is entitled to our judgment. The decision of this case must turn upon the ob-[843]-vious intention of the parties rather than upon any strict construction of the language used. In Boone v. Eyre (1 H. Black. 273, note) and Pordage v. Cole (1 Saund. 319 h., 320 a ) , there was nothing in the language to prevent the acts to be done by the plaintiffs from being treated as conditions precedent. But common sense and justice dictated the decision in those cases. It is a general rule that covenants are to be treated as independent rather than as conditions precedent, especially where some benefit has been derived by the covenantor. BRAMWELL, B. I am of the same opinion, though not without some doubt. The expressions "if the plaintiff did and should on the 25th quit, &c.; and did and should well and truly observe, perform and keep all and singular other the covenants and agreements thereinbefore contained," prima facie make the covenant of the.defendant contingent on the performance of the plaintiff's covenants. I say, with Tindal, C. J., if this matter were res integra I should doubt. But Boone v. Eyre (1 H. Black. 273, note) has established a principle which is fatal to Mr. Hannen's argument. The defendant's covenant appears to be made conditional upon the performance of all the covenants on the part of the plaintiff. But some of them, such as that for further assurance, are not to be performed till after the time of payment. Therefore it is impossible to construe the covenant literally. The reasonable construction is, that the plaintiff is entitled to recover for the manure; and that the breach of his covenant is the subject of a cross action. I do not say that if possession of the farms had not been delivered up that the plaintiff could have sued. That is of the substance of the consideration. 1 had some doubt whether the surrender of this document was not equally so. But there is an independent covenant by the plaintiff to surrender up all his unexhausted term and interest, which has been performed. [844] WATSON, B. In cases of this kind we must look to the substance and real intention of the parties rather than to any particular expression. It is often difficult to say what covenants are conditions precedent and what are not j and it is well to adhere to the canons laid down by Mr. Serjeant Williams for determining the question. The delivery up of this piece of paper is immaterial and not of the substance of the consideration. CHANNELL, B. I think that the delivering up of this document is not of the essence of the consideration ; and therefore the covenant to deliver it up is not a condition precedent unless expressly made so. Boone v. Eyre (1 H. Black. 273, note) seems to shew that the language of this deed is not sufficient for that purpose. Judgment for the plaintiff.
WILLIAMS V. FITZMAURICE. NOV. 25, 1858. The plaintiff agreed to build a house for the defendant, who prepared a specification which contained particulars of the different portions of the work. Under the head " Carpenter and Joiner," there was specified the scantling of the joists for the different floors, the rafters, ridge and wall pieces, but no mention was made of the flooring. The specification stated that " the whole of the materials mentioned or otherwise in the foregoing particulars, necessary for the completion of the work, must be provided by the contractor." At the foot of the specification the plaintiff signed a memorandum, whereby he agreed with the defendant " to do all the works of every kind mentioned and contained in the foregoing particulars, according in every respect to the drawings furnished or to be furnished, for the sum of 11001. The house to be completed and fit for the defendant's occupation by the 1st of August, 1858." The plaintiff prepared the flooring boards, brought them to the premises, and planed and fitted them to the several rooms, but refused to lay them down without extra payment, because the flooring was not mentioned in the specification, whereupon the defendant put an end to the contract, took possession of the

710

WILLIAMS V. FITZMAURICE

3 H. & N. 845.

works, and proceeding to complete the building used the flooring boards so prepared and fitted by the defendant: Held, First, that the plaintiff was not entitled to recover for the flooring as an extra, because it was included in the contract though not mentioned in the specification. Secondly, that the plaintiff could not maintain trover for the flooring boards left on the premises by him and subsequently used by the defendant. [Referred to, Dakin v. Lee, [1916] 1 K. B. 58.] Declaration. First count for work and labour and materials. Fifth count. That the defendant agreed [845] that he should employ the plaintiff, and that the plaintiff should do for the defendant certain work about building a house on land of the defendant, and provide materials for such work, for reward &c. Averment: that plaintiff did all things necessary on his part to entitle him to be employed and permitted by the defendant to finish the said work and to sue the defendant in respect of the breach of the agreement hereinafter mentioned. Yet the defendant, after the plaintiff had commenced the work and whilst he was duly proceeding with the same, refused to employ the plaintiff to proceed with and finish the said work, and wrongfully dismissed him from his said employment, and would not permit him to further proceed with or finish the said work, and absolutely discharged him from so doing; whereby the plaintiff was deprived of the reward &c. Sixth count. That defendant converted to his own use and deprived the plaintiff of his goods, to wit, scaffolding, planks, window frames and flooring boards. Pleas (inter alia). To the first count: Never indebted. To the fifth and sixth counts: Not guilty. To the fifth count: That the plaintiff wilfully and of his own accord, without the consent of the defendant, abandoned the said work in the said fifth count mentioned, and refused to complete the same, and wholly and absolutely relinquished and gave up the said agreement. To the sixth count: That the goods were not the goods of the plaintiff. At the trial, before Crowder, J., at the last Carnarvon Assizes, it appeared that the plaintiff, who was a joiner, in May, 1857, commenced building a house for the defendant. A specification having been prepared by the plaintiff, the defendant wrote to the plaintiff, saying "there are several matters that ought to have been much more detailed, but I trust entirely to your honourable feeling to complete them properly." On the 18th of August, 1857, the specification was signed. It was as follows : [846] "Specification and particulars of the several works and materials required in the erection of a building and house residence to be built in Cwbana Lane, near Conway, according to the plans and elevations and sections furnished by the Hon. Major Fitzmaurice. The necessary detail drawings to be furnished by the contractor. The house is to stand on the site pegged out, and on the foundations as they are now built." Then followed in succession details for "bricklayers and masons," "foundations," "solid foundations," "mortar," "walling," "flues," "sinks," "steps," "slater and plasterer." " Carpenter and Joiner. "All the timber to be yellow pine in this building of the best quality and free from knots. " Scantling of Timber. "Joists. 1 floor 9 x 2
2 8 x 2

6 x 2 &c.

"The staircase in the tower is to be constructed four feet wide inside the steps from first floor to second floor, with full inch risers and 1 inch tread, and the landing on strong and sufficient carriage, with moulded returned risings round the aforesaid landing, and strings to be 1 inch double sunk and beaded to receive the plaster ceiling. The balusters to be full inch deal, and every third step a rod of iron to be introduced to secure strength. The handrail to be a two and a half inch Honduras, moulded and sunk; handrail to be twisted to the sweep of the stairs &c. The other staircases in places to be three feet wide. All the doors on the first floor and second pair of floors to be two inch thick, and all the attics 1 | inch thick. The

3H.&N. 847.

W I L L I A M S V. FITZMAURICE

711

folding doors between the two drawing rooms to be 7 feet wide. All the windows to be of the best crown glass, and the windows of the dining and drawing room and all the rooms on the first floor to have 1 inch thick deal frames, beaded and cut, [847] two panel shutters, moulded on one side, to be made to fold against the walls, with proper hinges and fastenings," &c. After provisions as to "skirtings," and "plumber, glazier," and "bell-hanger," the agreement went o n : T h e whole of the materials mentioned or otherwise in the " foregoing particulars necessary for the completion of the work must in every respect be provided by the contractor, and must be all of the quality named," &c. At the foot was written : " Memorandum of Agreement. " I t is hereby agreed, this 18th day of August, 1857, between Major Fitzmaurice of the one part, and Owen Williams of the other part, that Owen Williams shall do and perform all the works of every kind mentioned and contained in the foregoing specification according in every respect to the drawings furnished or to be furnished, and subject to the above recited conditions, for the sum of 11001., &c. "11001. The house to be completed and dry and fit for Major Fitzmaurice's occupation by the first of August, 1858." Then followed stipulations as to the times of payment. The plaintiff proceeded with the building, and had received about 6001. on account, and an advance of 1201. on his promissory note, up to the 20th of February, when he wrote the following letter to the defendant: "Conway, Feb. 20, 1858. " I am unable to proceed with your building for want of the floors being put down, which are not part of my contract. If you wish me to put them down, I will do so on having an order from you to that effect. Unless they are put down immediately I will not be able to complete my contract by the time fixed, and if they are not down within four days from this time I shall conclude that you [848] do not intend for me to go on with my contract, and I will measure the work that I have done, so as to be paid for that only. "OWEN WILLIAMS." The defendant wrote in answer as follows : "Mr. Owen Williams. "Conway, Feb. 20, 1858. " A letter of this day's date from you has just been put into my hands, but I defy any one to understand your meaning. Be good enough to state whether I am to understand that you are not going to put in the floors, or whether you are not going to nail them down, plane, or tit them, or what is it that you do not intend to do.
"W. E. FITZMAURICE."

The plaintiff continued to work till the 24th of February, when he and his men finally quitted the premises. At this time he had prepared, planed, and fitted for the different rooms about 4000 feet of flooring. These boards were left on the premises not nailed down in their places. There were also other boards in a field adjoining, which had not been fitted to any particular rooms. On the 3rd of March the defendant gave notice to the plaintiff that unless he immediately proceeded to carry on the works the defendant would employ workmen to finish the house himself; and accordingly, about a fortnight afterwards, he locked up the premises and excluded the plaintiff, and his own workmen proceeded to finish the house. He then took possession of certain scaffolding and tools of the plaintiff, and of the flooring boards on the premises and in the field. The learned Judge held that the flooring was included in the contract, and therefore the defendant was entitled to a verdict on the second plea to the fifth count; and he directed a verdict for the plaintiff on the count in trover for 191. 7s., the value of the scaffolding and tools, and 141. 19s. on the count for work and labour, with leave to move to increase [849] the verdict by such sum as the Court should think fit in respect of all or any part of the flooring boards left on the premises or in the field.

712

WILLIAMS V. FITZMAURICE

3 H. & N. 850.

Mclntyre, in the present term, obtained a rule calling on the defendant to shew cause why the verdict on the count for work and labour should not be increased to the whole sum claimed, on the ground that the flooring was not included in the contract ; and why the verdict on the count in trover should not be increased by the sum of 591., on the ground that the defendant converted to his own use certain timber of the plaintiff. Welsbyand Beavan now shewed cause. The main question in this case is whether the plaintiff was bound by the contract to put in the floors. He contracted that for 11001. the house should be "completed dry and fit for occupation by the 1st of August, 1858." It is clear that the house would not be complete or fit for occupation without floors. Though the specification sets forth many particulars as to the wood work, it must not be taken that the intention was that those things alone which were specified are to be provided, but that, while the specification directs that certain things shall be of the quality, dimensions and materials named, the flooring was to be of the ordinary character and such as would be reasonably sufficient for the house. The plaintiff's own conduct shews that he understood that the floors were included in the contract, because, knowing there was no provision for extras, he prepared and fitted floors for the several rooms without communicating with the defendant, and it was not until after he found that he had received from the defendant more than was due to him that he disputed it. Secondly, as to the boards left on the premises which had been fitted for the floors under the contract, they were appropriated by [850] the contract and passed to the defendant: Goss v. Quinton (3 Man. & G. 825). Thirdly, the same principle applies to the materials prepared for the work and left in the adjoining field. Mclntyre and Morgan Lloyd, in support of the rule. The defendant, by his letter of the 6th of July, admits that the specification did not contain all he wanted. It is headed "Specification of works and materials required " &c, and at the foot is the memorandum in which the plaintiff' agreed " t o perform all the works of every kind mentioned and contained in the foregoing particulars." [Pollock, C. B. It is absurd to suppose that the flooring was to be an extra. Channell, B. The specification contains this expression : " The whole of the materials mentioned or otherwise in the foregoing particulars necessary for the completion of the work must in every respect be provided by the contractor." The work could not be completed without floors.] Secondly, until fixed the flooring boards did not become the property of the defendant. In Goss v. Quinton (3 Man. & G-. 825) there was an express appropriation of the goods by the consent of both parties. Here nothing would pass to the defendant except what is mentioned in the contract. In Wood v. Rowcliffe (6 Exch. 407) a bill of sale assigned all the household goods and furniture of every description whatsoever in a certain house, more particularly mentioned and set forth in an inventory; and it was held that no goods passed under the bill of sale except those specified in the inventory. POLLOCK, C. B. From the course adopted at the trial, we have to decide as Judges on the meaning of the written contract, and as jurymen on the effect of the evidence. I [851] own that when the rule was moved, I had some doubt whether the specification was not to be regarded as the contract between the parties; but, upon the whole facts being disclosed, it appears to me that no person can entertain any reasonable doubt that it was intended that the plaintiff should provide the flooring as well as the other materials requisite for the building, and that it was merely by inadvertence that no mention of the flooring was made in the specification. That the plaintiff intended to do it is manifest by his providing the material, which he brought to the house ready to be put in its place as a flooring. Besides, it is clearly to be inferred from the language of the specification that the plaintiff was to do the flooring, for he was to provide the whole of the materials necessary for the completion of the work; and unless it can be supposed that a house is habitable without any flooring, it must be inferred that the flooring was to be supplied by him. In my opinion the flooring of a house cannot be considered an extra any more than the doors or windows. But at all events, the plaintiff's conduct is an answer to his claim, for without any communication with the defendant and without the flooring being mentioned in the specification, he brings the material and is ready to lay the flooring down. I think that he was bound to provide the flooring, and that he cannot add its price to the cost of the building. Therefore upon the count for work and labour the plaintiff has

3 H. & N. 852.

BROWN V. KIDGER

713

recovered all that he is entitled to recover, and the rule to increase the damages on that count must be discharged. With respect to the count in trover, the learned Judge reserved leave to the plaintiflF to increase the amount of damages by two sums, viz.,* the value of the flooring (supposing the plaintiff was not bound by his contract to provide it) which was prepared and fitted for and left in the house, and the value of the boards left in the adjoining [852] field. I think that upon the count in trover the verdict ought to be increased by 91., the value of the latter, but not by the value of the flooring left in the house, and that the other part of the rule ought to be discharged. WATSON, B. I am of the same opinion. CHANNELL, B. I am of the same opinion. The contract was that the house should be completed and fit for occupation by the 1st of August, 1858, not that the works therein before mentioned should be completed by that day. I think that, looking at the terms of the contract, it would not be reasonable to read it as if it excluded all work not specifically mentioned. The plaintiflF contracted to do the entire work in the various characters of bricklayer, carpenter, plumber, &c, for the sum of 11001. j and it is not the less a contract to do the whole, because it is specified that certain parts of the building shall be constructed in a particular way. It was a contract for the erection of a house and though the flooring was not mentioned in express terms, it was necessarily implied. With regard to the count in trover, there is evidence for us, sitting as a jury, that the verdict ought to be increased by 91. Verdict for plaintiff on count in trover increased by 91., and residue of rule discharged, (ft)

[853]

BROWN V. KIDGER,

P R I C E BOSTOCK: AND KNIGHT.

Nov.

18,

1858. he T

defendants were partners for the purpose of working a coal mine. Two of them conducted the business of the colliery. The firm being in debt and two actions having been brought against them, the managing partners borrowed of the plaintiff, upon the credit of the firm, money for the purpose of settling these actions, and accepted in the name of the firm a bill of exchange drawn by him on them. The partnership deed contained a clause " that if any partner should for his own use, or for any other purpose than the immediate use of the partnership, draw, accept or indorse any bill of exchange in the name of the firm," the others might determine his interest in the partnership. Held, that the managing partners had authority to bind the partnership by borrowing the money and accepting the bill. [S. C. 28 L. J. Ex. 66. Referred to, Jacobs v. Morris, [1902] 1 Ch. 816.]

The first count of the declaration stated that the plaintiff by his bill of exchange, now overdue, directed to the defendants under the name and style of the " Peggs Green Colliery Company," required the defendants under such name and style to pay to the plaintiff's order 2601. 14s. one month after date : and the defendants then accepted the said bill but did not pay the same; and thereupon the same was returned to the plaintiff, who had previously negociated the same, dishonoured, with the expences thereof, which the plaintiff was compelled to pay. There were also counts for money lent and money paid. The defendants Bostock and Knight pleaded to the first count: that they did not accept the bill. To the residue of the declaration : Never indebted. An abstract of another plea was delivered, and on application for leave to plead several matters the learned Judge ordered that the defendants be at liberty to plead the above pleas, the plaintiff undertaking that the subject-matter of the other plea, of which an abstract was delivered, might (if necessary) be given in evidence under the first plea. The abstract was as follows : That the bill was accepted by Kidger and Price as agents to the Peggs Green Colliery Company, in which the defendants Bostock and Knight were alleged to be partners, without the knowledge or consent of the defendants Bostock and Knight, for their own private purposes, and not for partnership purposes, and that the partnership never received any value for the same ; (a) See Wood v. Bell, 6 E. & B. 355. Ex. Div. XIII 3 * 2