Ramsburg v. McCahan , 3 Gill 341 ( 1845 )

Archer, C. J.,

delivered the opinion of this court.

The plaintiff had entered into articles of agreement with the defendants, stating themselves in the contract to be the building-committee of the German Reformed Congregation of Jefferson, for the building of a church on a lot of ground belonging to the said congregation; and offered evidence to the juiy, to shew the building of tire church, and that extra work had been done on the’-, church, for which building and extra work, he sought to recover in this action.

The appellee, on his part, and in consideration of three thousand andfifty dollars, warranted and agreed, to erect, build, and completely finish, in a neat and workmanlike manner, a church or house of worship, for the German Reformed Congregation of Jefferson, upon ground belonging to said congregation, before the 1st day of June 1842. The size and plan of the church to be similar to the German Reformed Church in Shepherds-town, Virginia. The appellants covenanted, on their part, to pay to the appellee the sum of $3050, in manner following, to wit: $762.50, part thereof, when tire appellee should execute a penal bond, for the faithful performance of the covenants on his part; $762.50 when the brick wall should be commenced; $762.50 when the building should be put under roof; and the remaining $762.50, when die same shall be completely finished. And the agreement contained this further covenant: “It is further agreed, between the parties to these presents, that in case the said Ramsburg, Lakin and Reaster, as building committee aforesaid, shall direct any more work to be done in and about said church than is mentioned in the aforegoing agreement, that then the said building committee shall pay to the said George Me Cahan, so much money as such work shall be worth, upon a reasonable valuation.”

It appeared in evidence, that the church was finished sometime in the fall of 1842; that the key of the church was delivered to one of the appellants, Ramsburg, who said he was acting for himself and the rest of the committee; and that he was perfectly satisfied with the building, and promised to make the appellee satisfaction therefor; and that the church was taken possession of, and has been used as a house of worship ever since, by the German Reformed Congregation. Upon this, the appellants prayed the court to instruct the jury, that if they shall believe from the evidence in the case, that the work done by the plaintiff, and for the price or value of which this suit is brought, was done under and in virtue of said articles of agreement, under seal, offered in evidence by the plaintiff, though not done in the time specified by the said agreement, that then, for the doing of said work, the plaintiff is not entitled to recover in this form of action; which instruction the court refused to give, being of opinion, and so instructed the jury, that under the proof offered, the plaintiff is entitled to recover for the price or value of the work so done by him.

If an action can be sustained on the covenant between the parties, for the work done by the plaintiff, no recovery can be had in this action. The covenant contains a stipulation for the payment of the extra work, and the plaintiff rvould be entitled to recover thereon, unless the time for the completion of the building, including the extra work, was of the essence of the agreement.

It has heretofore been decided by this court, in Watchman & Bratt, 5 G. & J, 262, that the true intent of the parties, as apparent in the instrument, should determine whether covenants are independent or conditional; and guided by this rule, we have no difficulty in reaching the conclusion, that the covenant to perform the extra work, referred to in the agreement, is an independent covenant, the parties in relation thereto, not designing to restrict the completion of the extra work to the day designated in the contract. If extra work had been required to have been performed, the day before that designated for the completion of the church, the plaintiff would have been bound to have performed it, although such performance might have required months, and we cannot, therefore, suppose that the parties, as to such extra work, designed any restriction as to time. We therefore think, that whatever may be the true construction of the agreement as to time being the essence of the contract had no extra work been required to be done, in relation to the extra work, the covenant is wholly independent of the agreement, to complete the building at the time designated in the contract; and that as time in relation to such contract, is not of the essence of the agreement, a suit for tire extra work could only be maintained on the covenant.

Had the agreement contained no covenant in relation to the extra work, the terms of the agreement would have made the time for the completion of the building, of the essence of the contract. But the parties having stipulated, generally, for doing of extra work, which might require a longer time than that designated in the agreement, and which extra work might be necessary to complete the building, it is clear they did not consider time, as of the essence of the contract. The covenant for the extra work is peculiar in its phraseology. It stipulates, in case the building committee shall direct any more work to be done, in and about said church, than is mentioned in the agreement, that then they shall'pay therefor a reasonable valuation. Under this stipulation, the extent and kind of work, other than that mentioned in the agreement, was left discretionary with the committee, and the completion of the church might have been, in consequence, postponed far beyond the day designated in the contract. We are inclined, therefore, to think, that not only as it regarded what has been considered as extra work, but even in the erection of the church, time was not regarded by the parties as of the essence of the contract.

This view of the case, induces us to decide, that the court, were in error in refusing to grant the defendant’s prayers in the first and second bill of exception, and in granting the instruction, which was given by them to the jury in the first bill of exception. This instruction, however, is liable to another objection; the question of fact, as to the performance of the extra work, was taken from the jury.

We think the court were right in the opinion expressed by them in the third bill of exceptions. If the action of assumpsit had been the appropriate remedy to recover the value of the extra work, we do not think it would have been necessary as a preliminary step, for the plaintiff to have had a valuation of the work done, and to have given notice of such valuation to the defendants. It is true, the covenant obliges the defendants to pay as much money as the work shall be worth, upon a reasonable valuation. But the true construction of this agreement is, that the defendants shall pay the plaintiff what the work shall be reasonably worth: and not, that the plaintiff should procure a valuation, to be made as a rule of evidence. We are strengthened in this conclusion by the fact, that the parties did not designate any person to make the valuation. In the cases which have been referred to, in which it was held as indispensable, that an estimate should be made as a rule of evidence, it will be found, that there has been a designation by the parties of the person who should make it. Vide, 11 G. & J., 72, and the cases there referred to.

The question decided in the fourth and last bill of exception, is substantially the same decided on the respondent’s prayers, in the first and second bill of exceptions, and is liable to the objections stated in the examination of those exceptions. Upon this exception other questions were discussed, as to the right of the plaintiff to recover against the defendants, which we do not think are raised by the prayer, and on which, therefore, we deem it unnecessary to express any opinion.

JUDGMENT RE VERS ED.