#### JONATHAN B. CAPEHART *vs.*A. H. JONES, EX’R, &c.

A. contracted with B., a fislierman, that he would pay him so much *per annum,*for a certain number of years, for the offal of the fishery, and then it was stipulated, that A. should have the offal as long as the fishery was continued. *Held*that, by no proper construction of this contract, could A. be entitled, after the expiration of the said period and after the death of B. and the sale of the premises for division, to demand damages for the non-delivery of the offal.

Appeal from the Superior Court of Law of Bertie County, at the Spring Term, 1848, his Honor Judge Settle presiding.

This was an action of covenant upon the following instrument, to-wit:

“ We, William Bryan, and Henry L. Williams, fishing under the firm of Bryan and Williams, and Jonathan B. Capehart, have made the following bargain, viz: The said Capehart agrees to give the said Bryan and Williams three hundred dollars for the offal from their fishery at the head of the Albemarle Sound, payable as follows, viz : one hundred dollars on the 1st day of January, 1834, and one hundred dollars on the 1st day of January, 1835, and one hundred dollars on the 1st day of January, 1838, provided the said Bryan and Williams have the fishery fished every year, and catch five hundred barrels of fish, a fishing season; but should they fail to catch five hundred barrels of fish, then the said Capehart is only to pay for the offal in proportion, and should they fail to fish previous to the last payment, then the said Capehart is not to pay any more. In witness wnereof, we have affixed our hands and seals, this 9th day of August, 1831. *384It is further understood the said Capehart, his heirs and assigns are to have the offal of the said fishery as long as it is fished.”

Witness, (Seal.)

L. S. Webb to HENRY L. WILLIAMS, (Seal.)

Williams’ Seal J. B. CAPEHART, (Seal.)

and to Capehart’s Seal.

A. Oxly to do.

The breach of the covenant assigned by the plaintiff was the failure of the defendant’s testator, Williams, to permit him to take the offal from the fishery, mentioned in the instrument, during the year 1846. The defendant pleaded the general issue and conditions performed and not broken.

The jury under the charge of the Court rendered a verdict for the plaintiff and from the judgment thereon the defendant appealed.

Upon the trial some testimony was given in relation to the execution of the instrument, but it is unnecessary to state it, as the opinion of the Courtis confined to the question arising upon the construction of the covenant. It was proved that Bryan and Williams carried on the business of fishing every year, from the time when their contract with the plaintiff was entered into, until the death of Bryan in the year 1843, and that the plaintiff paid the $300, as agreed upon, and took the offal from the fishery up to that time. After the death of Bryan, the land and fishery were sold under a decree of the Court of Equity for Bertie County, upon the petition of the said Bryan’s heirs and Williams, when it was purchased by one Abraham Riddick, who subsequently sold to Kader Biggs. It was proved further, that the fishery was kept up and the fishing business canied on during the year 1845, by Williams and Riddick, and that Williams recognized the right of the plaintiff to the offal during that year. But Biggs took possession of the land and fishery, and carried on *385the business of fishing himself, during the year 1846, and refused to let the plaintiff have the offal of that season, for which he brought this action against Williams, which, upon his death in the Fall of 1846, was revived against his executor.

The defendant’s counsel contended, that, according to the proper construction of the contract, the plaintiff was entitled to have the offal of the fishery only so long as it was fished by Bryan and Williams, but the presiding Judge was of a different opinion, and, imder his instructions to the jury, the plaintiff obtained a verdict for the value of the offal during the year 1846.

P. *II Winston, Jr.,*for the plaintiff.

*W. N. H. Smith,*for the defendant.

Battle, J.

The construction, placed upon the covenant in question by the presiding Judge, makes it operate so unequal!}' upon the different parties, and produces effects so disastrous to the estate of one of them, that nothing but the plainest language in the instrument could induce us to adopt it. According to that construction, the plaintiff will be entitled to recover damages from the defendant, during an indefinite number of years, for not permitting him to have the offal from the fishery mentioned in the covenant, while it shall be fished, although it may become the property of another person, and the estate of the defendant’s testator may have no interest in it, and derive no profit from it. Surely the parties to the contract, supposing them to be men of ordinary understanding, never contemplated such a result; and we think that their contract, when fairly interpreted, does not lead to it. The covenant was executed on the 9th of August 1831, and stipulates that for the sum of $300, payable by three equal annual instalments, commencing on the 1st day of January, 1834, the plaintiff shall have all the offal from the fisheries of Bryan and the defen*386dant’s testator, provided they catch as many as five hundred barrels of fish *per annum;*but if they catch less than that number, then the plaintiff is to pay only in proportion ; and, if they fail to fish previous to the last payment, then he is to pay no more. So far, the contract seems plain; and to be nothing more than a purchase by the plaintiff, at an agreed price, and upon certain specified terms, of all the offal from the fishery of the other parties up to the close of the year 1836. And there the contract seems at the time to have ended, for the • attestation clause immediately follows. But after that is added, the clause, under which the plaintiff claims to recover in this action. It states that, “ It is further understood the said Capehart is to have the offal of the said fishery as long as it is fished.” Fished by whom I Certainly by the owners of the fishery, who are contracting- to let the piaintiffhave the offal. That is the natural construction ; and it is the only reasonable and fair one. For if the construction, contended for by the plaintiff be adopted, it will have the extraordinary effect, in the events which have happened, of giving him something like a perpetual annuity of the yearly value of the offal out of the estate of the defendant’s testator. We think that the contract terminated, at the latest, when Bryan and Williams ceased to be the owners of the fishery, and that the recognition of it by Williams, while he and Riddick were fishing in 1845, was founded in a clear mistake of its true meaning and intent.

Per Curiam. Judgment reversed,