Dwiggins v. Shaw

• Decision Date: 31 December 1845
• Citation: 6 Ired. 46,28 N.C. 46
• Court: North Carolina Supreme Court
• Parties: SAMUEL DWIGGINS v. JOHN M. SHAW et al.

6 Ired. 46

28 N.C. 46

SAMUEL DWIGGINS

v.JOHN M. SHAW et al.

Supreme Court of North Carolina.

December Term, 1845.

In construing an agreement, there are no technical rules to determine, whether its stipulations are dependent or independent, but every agreement is to be judged of according to its own terms and the nature of the transaction to which it relates, so as best to effectuate the intention of the parties.

The order in which the provisions are found in the instrument, does not control the construction, but they will be transposed so as to effectuate the intention, which is to be collected from the order in point of time, in which the several acts of the different parties are to be performed.

Appeal from the Superior Court of Law of Guilford County, at the Fall Term, 1845, his Honor Judge DICK presiding.

The action was covenant on the following instrument, executed by the defendants to the plaintiff:

“On or before the 1st of August, 1844, we promise to make the number of fifty wheat fans after the Lomax model for Samuel Dwiggins, value received of him.-- Witness our hands and seals, this 30th day of January, 1844.

The above mentioned fans are to be made in a workman-like manner. The said Dwiggins agrees to furnish the materials for the above mentioned fans on or before the 20th of February, 1844.”

The breach alleged is, that the defendants did not make the fans by the 1st of August, 1844, and the declaration does not aver that the plaintiff furnished materials for them. After oyer, the defendants pleaded non est factum. performance generally, and also that the defendants had requested the plaintiff to furnish to them the materials for making the said fans, and that he refused and failed so to do; and thereon issues were joined.

On the trial, the plaintiff offered, of course, no evidence that he furnished any materials, and the defendants moved the Court to instruct the jury, that, for the want of it, the plaintiff could not recover. But the Court was of opinion, that the covenant of the defendants bound them to make the fans absolutely, and that the plaintiff need not show that he furnished the materials, and, therefore, refused the instruction.

The defendants then proved by a witness, that in April, 1844, the defendants made for the plaintiff ten fans out of materials furnished by him, and commenced several others, and were ready to make the whole number, but that they could not complete those which were begun nor make any others, for the want of materials, which the plaintiff failed to supply. The defendants then moved the Court to instruct the jury, that, if they believed the witness, they ought to find for the defendants. But the Court held, that such failure on the part of the plaintiff would give to the defendants an action on the covenant against the plaintiff, but did not excuse the defendants for not making the fans by the time appointed, and, therefore, that the plaintiff was entitled to recover.--Verdict and judgment for the plaintiff for $113; and the defendants appealed.

Kerr, for the plaintiff .

Morehead, for the defendants .

RUFFIN, C. J.

The Court is of opinion, that the instructions were erroneous. It seems impossible to mistake the meaning of the parties. In construing their agreement, its stipulations are to be held to be dependent or independent, as will effect the apparent intention.--Although the books are overloaded with adjudications upon the question, there are really no technical rules to govern us, but every agreement is to be judged of,...