H. & N. 843. WILLIAMS V. F1TZMAURICE 709

[Bramwell, B. It may be that by the word " if" the parties intended to make theperformance 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 plaintiffmay get nothing, because he may fail in the performance of the covenant to give uppossession 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 thiscase must turn upon the ob-[843]-vious intention of the parties rather than upon anystrict construction of the language used. In Boone v. Eyre (1 H. Black. 273, note) andPordage v. Cole (1 Saund. 319 h., 320 a) , there was nothing in the language to preventthe acts to be done by the plaintiffs from being treated as conditions precedent. Butcommon sense and justice dictated the decision in those cases. It is a general rulethat 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. Theexpressions "if the plaintiff did and should on the 25th quit, &c.; and did and shouldwell and truly observe, perform and keep all and singular other the covenants andagreements thereinbefore contained," prima facie make the covenant of the.defendantcontingent 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. Thedefendant's covenant appears to be made conditional upon the performance of all thecovenants on the part of the plaintiff. But some of them, such as that for furtherassurance, are not to be performed till after the time of payment. Therefore it isimpossible to construe the covenant literally. The reasonable construction is, thatthe plaintiff is entitled to recover for the manure; and that the breach of his covenantis the subject of a cross action. I do not say that if possession of the farms had notbeen delivered up that the plaintiff could have sued. That is of the substance of theconsideration. 1 had some doubt whether the surrender of this document was notequally so. But there is an independent covenant by the plaintiff to surrender up allhis unexhausted term and interest, which has been performed.

[844] WATSON, B. In cases of this kind we must look to the substance and realintention of the parties rather than to any particular expression. It is often difficultto say what covenants are conditions precedent and what are not j and it is well toadhere 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 theconsideration.

CHANNELL, B. I think that the delivering up of this document is not of theessence of the consideration ; and therefore the covenant to deliver it up is not a con-dition 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 housefor the defendant, who prepared a specification which contained particulars ofthe 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 specificationstated that " the whole of the materials mentioned or otherwise in the foregoingparticulars, necessary for the completion of the work, must be provided by thecontractor." 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 men-tioned and contained in the foregoing particulars, according in every respect tothe drawings furnished or to be furnished, for the sum of 11001. The house tobe 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, andplaned and fitted them to the several rooms, but refused to lay them down with-out extra payment, because the flooring was not mentioned in the specification,whereupon the defendant put an end to the contract, took possession of the

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works, and proceeding to complete the building used the flooring boards soprepared and fitted by the defendant: Held, First, that the plaintiff was notentitled to recover for the flooring as an extra, because it was included in thecontract though not mentioned in the specification. Secondly, that the plain-tiff could not maintain trover for the flooring boards left on the premises by himand subsequently used by the defendant.

[Referred to, Dakin v. Lee, [1916] 1 K. B. 5§8.]

Declaration. First count for work and labour and materials. Fifth count. Thatthe defendant agreed [845] that he should employ the plaintiff, and that the plaintiffshould do for the defendant certain work about building a house on land of the defen-dant, and provide materials for such work, for reward &c. Averment: that plaintiffdid all things necessary on his part to entitle him to be employed and permitted bythe defendant to finish the said work and to sue the defendant in respect of the breachof the agreement hereinafter mentioned. Yet the defendant, after the plaintiff hadcommenced the work and whilst he was duly proceeding with the same, refused toemploy the plaintiff to proceed with and finish the said work, and wrongfully dismissedhim from his said employment, and would not permit him to further proceed with orfinish the said work, and absolutely discharged him from so doing; whereby theplaintiff was deprived of the reward &c. Sixth count. That defendant converted tohis own use and deprived the plaintiff of his goods, to wit, scaffolding, planks, windowframes and flooring boards.

Pleas (inter alia). To the first count: Never indebted. To the fifth and sixthcounts: Not guilty. To the fifth count: That the plaintiff wilfully and of his ownaccord, without the consent of the defendant, abandoned the said work in the saidfifth count mentioned, and refused to complete the same, and wholly and absolutelyrelinquished and gave up the said agreement. To the sixth count: That the goodswere not the goods of the plaintiff.

At the trial, before Crowder, J., at the last Carnarvon Assizes, it appeared thatthe plaintiff, who was a joiner, in May, 1857, commenced building a house for thedefendant. A specification having been prepared by the plaintiff, the defendant wroteto the plaintiff, saying "there are several matters that ought to have been much moredetailed, 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 requiredin the erection of a building and house residence to be built in Cwbana Lane, nearConway, 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 nowbuilt."

Then followed in succession details for "bricklayers and masons," "foundations,""solid foundations," "mortar," "walling," "flues," "sinks," "steps," "slater andplasterer."

" 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 22 8 x 23 6 x 2 &c.

"The staircase in the tower is to be constructed four feet wide inside the stepsfrom first floor to second floor, with full inch risers and 1 £ inch tread, and thelanding on strong and sufficient carriage, with moulded returned risings round theaforesaid landing, and strings to be 1 inch double sunk and beaded to receive theplaster ceiling. The balusters to be full inch deal, and every third step a rod of ironto be introduced to secure strength. The handrail to be a two and a half inchHonduras, 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

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3H.&N. 847. WILLIAMS V. FITZMAURICE 711

folding doors between the two drawing rooms to be 7 feet wide. All the windowsto be of the best crown glass, and the windows of the dining and drawing room andall 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," theagreement went on:—"The whole of the materials mentioned or otherwise in theforegoing particulars necessary for the completion of the work must in every respectbe 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 doand perform all the works of every kind mentioned and contained in the foregoingspecification 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'soccupation 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 hewrote 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 willdo so on having an order from you to that effect. Unless they are put down immedi-ately I will not be able to complete my contract by the time fixed, and if they arenot down within four days from this time I shall conclude that you [848] do notintend for me to go on with my contract, and I will measure the work that I havedone, 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 tounderstand that you are not going to put in the floors, or whether you are not goingto 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 menfinally quitted the premises. At this time he had prepared, planed, and fitted for thedifferent rooms about 4000 feet of flooring. These boards were left on the premisesnot 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 defen-dant gave notice to the plaintiff that unless he immediately proceeded to carry on theworks the defendant would employ workmen to finish the house himself; and accord-ingly, about a fortnight afterwards, he locked up the premises and excluded theplaintiff, and his own workmen proceeded to finish the house. He then took posses-sion of certain scaffolding and tools of the plaintiff, and of the flooring boards on thepremises and in the field.

The learned Judge held that the flooring was included in the contract, andtherefore 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 valueof the scaffolding and tools, and 141. 19s. on the count for work and labour, withleave to move to increase [849] the verdict by such sum as the Court should thinkfit in respect of all or any part of the flooring boards left on the premises or inthe field.

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7 1 2 WILLIAMS V. FITZMAURICE 3 H. & N. 850.

Mclntyre, in the present term, obtained a rule calling on the defendant to shewcause why the verdict on the count for work and labour should not be increased tothe whole sum claimed, on the ground that the flooring was not included in the con-tract ; and why the verdict on the count in trover should not be increased by the sumof 591., on the ground that the defendant converted to his own use certain timber ofthe plaintiff.

Welsbyand Beavan now shewed cause. The main question in this case is whetherthe plaintiff was bound by the contract to put in the floors. He contracted that for11001. the house should be "completed dry and fit for occupation by the 1st ofAugust, 1858." It is clear that the house would not be complete or fit for occupationwithout floors. Though the specification sets forth many particulars as to the woodwork, it must not be taken that the intention was that those things alone which werespecified are to be provided, but that, while the specification directs that certain thingsshall be of the quality, dimensions and materials named, the flooring was to be of theordinary character and such as would be reasonably sufficient for the house. Theplaintiff's own conduct shews that he understood that the floors were included in thecontract, because, knowing there was no provision for extras, he prepared and fitted floors for the several rooms without communicating with the defendant, and it wasnot until after he found that he had received from the defendant more than was dueto him that he disputed it. Secondly, as to the boards left on the premises which hadbeen fitted for the floors under the contract, they were appropriated by [850] thecontract 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 theadjoining field.

Mclntyre and Morgan Lloyd, in support of the rule. The defendant, by hisletter of the 6th of July, admits that the specification did not contain all he wanted.I t is headed "Specification of works and materials required " &c, and at the foot isthe memorandum in which the plaintiff' agreed " to perform all the works of everykind mentioned and contained in the foregoing particulars." [Pollock, C. B. It isabsurd to suppose that the flooring was to be an extra. Channell, B. The specifica-tion contains this expression : " The whole of the materials mentioned or otherwisein the foregoing particulars necessary for the completion of the work must in everyrespect be provided by the contractor." The work could not be completed withoutfloors.] Secondly, until fixed the flooring boards did not become the property of thedefendant. In Goss v. Quinton (3 Man. & G-. 825) there was an express appropriationof the goods by the consent of both parties. Here nothing would pass to the defen-dant 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 what-soever 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 inthe inventory.

POLLOCK, C. B. From the course adopted at the trial, we have to decide as Judgeson 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 specifica-tion was not to be regarded as the contract between the parties; but, upon the wholefacts being disclosed, it appears to me that no person can entertain any reasonabledoubt that it was intended that the plaintiff should provide the flooring as well asthe other materials requisite for the building, and that it was merely by inadvertencethat no mention of the flooring was made in the specification. That the plaintiffintended to do it is manifest by his providing the material, which he brought to thehouse ready to be put in its place as a flooring. Besides, it is clearly to be inferredfrom the language of the specification that the plaintiff was to do the flooring, for hewas 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 mustbe 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. Butat all events, the plaintiff's conduct is an answer to his claim, for without any com-munication with the defendant and without the flooring being mentioned in thespecification, he brings the material and is ready to lay the flooring down. I thinkthat he was bound to provide the flooring, and that he cannot add its price to thecost of the building. Therefore upon the count for work and labour the plaintiff has

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3 H. & N. 852. BROWN V. KIDGER 713

recovered all that he is entitled to recover, and the rule to increase the damages onthat count must be discharged.

With respect to the count in trover, the learned Judge reserved leave to theplaintiflF 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 wasprepared and fitted for and left in the house, and the value of the boards left in theadjoining [852] field. I think that upon the count in trover the verdict ought to beincreased by 91., the value of the latter, but not by the value of the flooring left inthe 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 workstherein before mentioned should be completed by that day. I think that, looking atthe terms of the contract, it would not be reasonable to read it as if it excluded allwork not specifically mentioned. The plaintiflF contracted to do the entire work inthe 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 certainparts of the building shall be constructed in a particular way. It was a contract forthe 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 forus, 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 ruledischarged, (ft)

[853] BROWN V. KIDGER, PRICE BOSTOCK: AND KNIGHT. Nov. 18, 1858.—Thedefendants were partners for the purpose of working a coal mine. Two of themconducted the business of the colliery. The firm being in debt and two actionshaving 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, andaccepted in the name of the firm a bill of exchange drawn by him on them. Thepartnership deed contained a clause " that if any partner should for his ownuse, 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 othersmight determine his interest in the partnership. Held, that the managingpartners had authority to bind the partnership by borrowing the money andaccepting 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 " PeggsGreen Colliery Company," required the defendants under such name and style topay to the plaintiff's order 2601. 14s. one month after date : and the defendants thenaccepted the said bill but did not pay the same; and thereupon the same was returnedto the plaintiff, who had previously negociated the same, dishonoured, with theexpences thereof, which the plaintiff was compelled to pay. There were also countsfor money lent and money paid.

The defendants Bostock and Knight pleaded to the first count: that they did notaccept the bill. To the residue of the declaration : Never indebted.

An abstract of another plea was delivered, and on application for leave to pleadseveral matters the learned Judge ordered that the defendants be at liberty to pleadthe 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 thefirst plea. The abstract was as follows : That the bill was accepted by Kidger andPrice as agents to the Peggs Green Colliery Company, in which the defendantsBostock and Knight were alleged to be partners, without the knowledge or consentof the defendants Bostock and Knight, for their own private purposes, and not forpartnership purposes, and that the partnership never received any value for the same ;

(a) See Wood v. Bell, 6 E. & B. 355.

Ex. Div. XIII —2 3 *

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