#### EPHRAIM CLAYTON *vs.*WALTER BLAKE.

Where the plaintiff had covenanted that he would build and complete a house for the defendant, to be completed by the first day of April, 184.2, and the defendant in the same deed agreed to pay fthe plaintiff $2500 when the house was completed: *Meld*that the latter was a dependent covenant, and-the plaintiff could not recover *on this covenant,*unless he shewed that the house was completed by the first of April, 1842.

The dependence or independence of covenants is to be collected from the evident sense and meaning of the parties, and, however transposed they may be in the deed, the precedency must depend *on the order of time,*in which the intent of the transaction requires their performance.

Where a house has been built under a covenant, though not according to the conditions of the covenant, and the person, for whom it is built, accepts it; although the party building cannot recover on the covenant, he may, in a proper action, recover a remuneration for his work, labor, &c.

Appeal from the Superior Court of Law of Henderson county, at Spring Term, ,1844, his Honor Judge Settle presiding.

This was an action of debt upon an instrument of writing under seal, of which the following is substantially a copy: “Articles of agreement between Walter Blake of the one part and Ephraim Clayton of the other part: whereby the said E. C. does agree to build a house on the plantation of the said W, B., situate, &c. (then describing particularly the kind of house,) the whole to be finished in a neat and workmanlike manner, &c. — said work to be completed by the 1st day of April, 1842. And the said Walter Blake does agree on his part to pay $3500 for the same, $1000 to be paid on the 1st day of December next, and the balance when the house is completed.” Dated 9th Sept. 1841, and signed and sealed by the parties. The plaintiSj after proving the execution of the instrument, proved, that he finished the house for the defendant about the last of May or 1st of June 1842, and the writ was issued in August following. The *498000, the first instalment, was paid at the time stipulated. The defendant’s counsel moved to nonsuit the plaintiff, on the ground that the house was not completed by the time specified in the covenant, and. that the plaintiff had not proved it was done in a neat and workmanlike manner, and also that the plaintiff had not notified the defendant of the completion of the work before he instituted his suit, and that the action of debt could not be sustained. His Honor charged the jury that the covenants were independent, •and that, if they believed the evidence offered, the plaintiff was entitled to their verdict.

The jury found for the plaintiff, and, judgment being rendered pursuant to the verdict, the defendant appealed.

*W. J. Alexander*& *Moke*for the plaintiff.

*Badger 6p Bynum for the*defendant,

The performance of a condition precedent must be averred according to the intent, an *exact*performance. 1 Chitty PI. (2 ed.) 316. 8th do. 325. Hence, the plaintiff in this case was bound to aver a building within the *time,*because it is necessary to make an *exact*performance, and because the express provision of the contract shews the *intent*to make the time of the essence of the contract.

“If for an hawk to be delivered *such a day,*you shall have my horse at Christmas, if the hawk be not delivered *at the day,*you shall not have the action for the horse.” 1 Dyer, 76, a. (30) *Andrew*v *Boughey.*As to the mode of stating perfermance, see *Wade*v *Bache,*1 Saund. 145, 146.

The building of the house is a condition precedent to the plaintiff’s right to recover in this action.

*First,*because the money is to be paid for the work done, and because upon the reason and nature of the case the law implies it. *Peelers*v *Opie, 2*Saund. 350.

*Secondly,*because the money now sought to be recovered is appointed to be paid *when*or *after*the work is done. 2 resolution in *Thorpe*v *Thorpe,*1 Ld. Ray. 665. See al-go 1 Chitty Pleadings, 2 American Ed. 312. 8th do. 322.

*499Whether the plaintiff might not have entitled himself by shewing *acceptance*of the house after it was built, as an excuse for non-performance in time — and whether he might not, on such acceptance, have recovered in another form of action, it is useless here to enquire.

In this action, and upon the state of the case, he cannot recover, because his contract is not performed as it was made.

DaNiel, J.

The plaintiff has brought an action of debt upon the deed set forth in the case, to recover $3500, the price of building a house for the defendant. The first in-stalment of $1000 was agreed to be paid by the defendant, before the work was to be finished by the plaintiff; therefore that demand rested on an independent covenant. It has been paid, and there is no dispute as to that sum. The “ balance” (2500,) was to be paid, *when*the house should be completed. The defendant resisted the plaintiff’s recovery of this last instalment, on the ground, that he did not prove on the trial, that he had completed the house, within the time mentioned in the deed, to wit, on or before the 1st day of April, 1842. The court instructed the jury, that the covenants in the indenture, on this point, were independent, and that the plaintiff was entitled to recover. The dependence or independence of covenants, is to be collected from the evident sense and meaning of the parties; and, however transposed they may be in the deed, their pre-cedency must depend on the order of *time,*in which the intent of the transaction requires their performance. *Kingston*v Preston, cited in *Jones*v *Blakely,*Doug. 689. Wills. 496. *Platt on Covenants,*79. Taking the above directions as to the law on the subject, we must say, that the Judge erred in his charge. For we collect the intention and meaning of the parties to be, that the ($2500) was to be paid, *if*the plaintiff completed the house by the 1st day of April, 1842; at which time, he had covenanted that the house should be completed. The word *when,*must have reference to the time antecedently agreed upon by the parties for the completion of the building ; and that time was *500the 1st day of April, 1842. The completion of *the*house by the plaintiff in a workman like manner in the time stipulated in the deed, was, we think, a condition precedent to rjghtj hy force of his deed, to claim the $2500. This case is like that of *Glazebrook*v *Woodrow,*8 Term R. 366, where the plaintiff covenanted to sell to the defendant a school house, and to convey the same to him on or before the 1st of August, 1797, and to deliver up the possession to him on the 24th of June, 1796; and in consideration thereof, the defendant covenanted to pay to the plaintiff £120, on or before the 1st day of August, 1797. It was holden, that the covenant to convey, and that for the payment of the money, were dependent covenants ; and that the plaintiff could not maintain an action for the £120, without averring that he had conveyed, or tendered a conveyance to the defendant. Although the plaintiff may be unable to recover in his action as now framed, yet he may not be without remedy for such sum as he ought to recover. For if he has built a house for the defendant, which the latter has accepted and used, the plaintiff will be entitled to recover the just value of his work and labor, as estimated by a jury, in a proper action.

Per Curiam. New trial awarded.