Dodge v. McClintock , 47 N.H. 383 ( 1867 )

Sargent, J.

It is evident that neither party intended to convey any interest in real estate by the agreement between Preston and Atwood. No interest in land is described; no standing wood or timber is attempted to be conveyed. The one gives to the other leave or license to do certain acts, to cut timber and wood on his land, and the other gives the first leave to flow as much of his land as his mills now flow at high water.

Upon the authority of Carleton v. Redington, 21 N. H. 305 — 6, and cases cited, the question might have been raised, whether these licenses on each side were assignable, and whether both were not determined and ended when the original parties to the contract sold and conveyed their several premises. But the case finds that there was an actual revocation by the plaintiff of the license to defendant to cut wood and timber on his land, before the acts here complained of. But it is claimed here that this revocation could not be effectual, until the plaintiff should cease to flow the defendant’s land; that these licenses were mutual and dependent one upon the other, in the nature of conditions precedent, so that neither could revoke the license given to the other, so long as he enjoyed the benefit of the license given to him.

This leads us to examine the nature of the licenses given in this case. These licenses were evidently mutual in one sense, that is, each was given in consideration of the other. But they may be mutual to that extent without being- dependent. Because one was granted in consideration of the other, it by no means necessarily follows that the privilege of enjoying the one after it was given, was to depend upon the fact, as a condition precedent, that the other was enjoyed.

In Jones v. Barclay, Doug. sec. 659, Le Blank for the plaintiffs, in his argument, cited the case of Kingston v. Preston, determined in E. 13 Geo. 3, in which Lord Mansfield, delivering the judgment of the court, said : "There are three kinds of covenants :

1. Such as are called mutual and independent, where either party may recover damages from the other, for the injury he may have received by a breach of the covenants in his favor, and where it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff.

2. There are covenants which are conditions and dependent, in which the performance of one depends on the prior performance of another. and therefore till this prior condition is performed, the other party is not liable on his covenant.

3. There is also a third sort of covenants which are mutual conditions to be performed at the same time; and in these, if one party was ready and offered to perform his part, and the other neglected or refused to perform his, he who was ready and offered■, has fulfilled his engagement and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act.”

But he adds, that the dependence or independence of the covenants, was to be collected from the evident sense and the meaning of the parties.

This subject of dependent and independent covenants and contracts is fully considered in Perdage v. Cole, 1 Saund. 319, in note 4, by Seryt. Williams, and numerous authorities cited. So Parsons, in his work on Contracts, 4th Ed. vol. 2, p. 40, says, that by the very definition of them, if covenants or agreements are dependent, that is, if each depends upon the other, the failure of one destroys and amends the other. But he adds, "they may be wholly independent, although relating to the same subject, and made by the same parties, and included in the same instrument. In that case they are two separate contracts. Each party must then perform what he undertakes, without reference to the discharge of his obligations by the other party; and each party may have his action against the other for the non-performance of his agreement, whether he has performed his own or not.”

In the case before us, it seems evident, that, though these contracts were mutual, so far as that one was the consideration of the other, yet they were not mutual in the sense that one was to be considered as a condition precedent to the other; one is not to depend upon the other; one is not to have leave to cut wood as long as the other is allowed to flow land, or on condition that he is thus allowed to flow land, and vice versa. There is no dependence of the one contract upon the other, no condition precedent to be performed on either side.

These licenses fall, as we think, clearly within Lord Mansfield’s first division of covenants or contracts, mutual to a certain extent, but yet independent of each other. It follows, therefore, that in such cases either party may not only have his action for a breach of the contract in his favor, without regard to his performance of his contract to the other party, but that either party in a case like this may revoke his license at his option, whether the other party revokes his or not, provided the license is on other grounds revocable.

But it is claimed that the license in this case cannot be revoked, until the party revoking abandons the use of the other party’s land. But as we hold the licenses to be entirely independent of each other, this position is not tenable.

We had occasion to consider this question in Houston v. Laffee, 46 N. H. 505, and to examine the authorities, and we there came to the conclusion that a parol license to do a certain act or series or succession of acts on the land of another, is in all cases revocable, so far as it remains unexecuted, or so far as any future enjoyment of the easement is concerned, at the will of the licensor, even where the licensee has made an expenditure of money upon the land of the licensor upon the faith of such license.

Nor do we think that the acts of the plaintiff were competent, as tending to show any license, either express or implied, in the face of his direct prohibition, which was as explicit a revocation of his license as he could well make. The evidence offered by defendant was also incompetent to show a prescription. To give any right by prescription, the possession or occupancy must not only have been uninterrupted and peaceable, but adverse. The fact that the defendant had claimed and exercised the right to enter upon said land, &c., under this agreement, was a claim not adverse, but in subordination to the plaintiff’s title, and under the plaintiff’s license. An adverse possession could only commence when the plaintiff revoked his license.

Judgment on the verdict.