#### MORGAN *v.*WARD AND BEADLE.

Covenants — dependent and independent — construction—partial payments.

Contracts are to be construed according to the intention of the parties, to be gathered from the whole instrument.

The case in 1 O. *R.*340, does not confine the court to the construction, that where payments are to be made at different times, all the covenants are independent.

The 5 O. *R.*492, and 10 *John. R.*205, sustain the court in deciding that the good sense and meaning of the contract will determine whether the covenants are dependent or independent.

If by the contract a portion of the pay is to be made upon the completion of a portion of the work, the performance of that part of the work is pro tanto a condition precedent, not the performance of the whole work.

If the contract be to pay a gross sum, and to advance from time to time on the estimate of engineers a percent, of the value, the performance of the work, the estimate by the engineers the notice and refusal to pay, will discharge the obligation to go on with the work.

Covenant. The plaintiff covenanted to build a tunnel and lock, at a stipulated price, to be fully paid at the completion of the work, but provided that advances should be made to him from time to time as the work progressed, upon the estimates of the engineer. The plaintiff having proven that he progressed with the work, offered evidence that the defendants had refused to pay him the estimates of the engineer, in consequence of which he abandoned the job: and also to prove the value of the work done.

Stillwell, for the defendants,

objected, that inasmuch as the payments were to be made at different times, they were independent covenants throughout, and therefore they could not inquire as to the value of the work done, till it is *all*done. He cited 1 *O. R.*340.

*W.*Silliman, contra.

Wood, J.

The contract must be construed according to the intention of the parties, which is to be gathered from the whole instrument. There is nothing technical in it. The case cited in the 1 O. *E.*340, does not coniine us to sustain the construction contended for by the defendants. The case in 5 O. *E.*492,. and in 10 *John. E.*205, sustains us in saying, that ‘ the good sense and meaning of the contract’ will determine whether the covenants are dependent or independent, and where the terms, of the contract provided that a certain part of the consideration shall be paid on the completion of a certain part of the service, the payment for *that part of the service*is pro tanto a condition precedent not the performance of the whole. Mechanics may need advances from time to time to enable them to proceed with their work — the interest of both is promoted by payments as the work progresses — the employer is secured by the work actually done, and the portion of compensation retained until the whole is finished. It is the duty of courts so to construe contracts as to give effect to the intentions of *475the contracting parties, provided they are lawful. In this case, we think the true construction of the contract is to pay the amount of this work at the stipulated price, on or before- the completion of the work, in instalments, as the work progresses, as the engineers estimate the work for the original contractor, and that upon the payment of the instalments on the estimates, depends the right of the employers to enforce the performance of the entire work. The plaintiff, therefore,on showing that he has performed a rateable proportion of the work, the estimate of the engineer, the notice and the refusal by the defendants to pay, may recover for the work .done, and abandon.

After this opinion the case was settled.