Reed v. Seymour
| Decision Date | 13 November 1877 |
| Citation | 24 Minn. 273 |
| Parties | J. A. Reed, as Warden, etc., v. George M. Seymour and others |
| Court | Minnesota Supreme Court |
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This was an action to recover certain rent, and the hire of certain convicts, for the quarters ending June 30 and September 30, 1876, under a written contract entered into July 1, 1872, by the warden of the state prison, in behalf of the state and Seymour, Sabin & Co., whereby there was leased to the latter certain prison shops and grounds, and also hired out to the latter certain convict labor, for the term of nine years, at a stipulated rent and hire. Said contract also contained the following covenant, to-wit:
"And the party of the first part, for himself and successors in office, on behalf of the state of Minnesota, does covenant and agree, to and with the parties of the second part, and their successors in interest herein, that said state of Minnesota shall at all times during the continuance of this contract furnish and provide, within and upon the premises herein demised, all reasonable and necessary ground and shop-room for the profitable and convenient employment of the convicts turned over to and employed by the parties of the second part, or their successors in interest under this contract."
The defendants alleged a breach of the aforesaid covenant, during the whole term up to the time this action was brought, and set up their consequent damages as a counter claim to the plaintiff's demands under the contract.
The case was tried in the district court for Washington county, by Crosby, J., and a jury.
In charging the jury the court said, in relation to the above covenant:
Again, the court said: The court also refused the following request of the plaintiff as to the qualification of its instruction as to the duty of the state to erect workshops within the grounds of the prison yard: "But the state was not required to erect workshops of such a size as would interfere with the proper use of the then existing buildings for the purpose of a prison, or with the proper use of the yard for prison purposes."
The plaintiff duly excepted to the portions of the charge above quoted, and to the refusal of the above request.
The jury rendered a verdict for the defendant. Plaintiff thereupon moved for judgment, notwithstanding the verdict, and for a new trial. Both said motions were denied, and plaintiff appealed from the order denying these motions.
Order reversed.
Geo. P. Wilson, Attorney General, and Geo. B. Young, for appellant.
If the covenant be construed to mean that the state shall erect additional buildings, whenever required, "for the profitable and convenient employment of the convicts," it is clear that it would be not only inconsistent with the evident intention of the parties, but absolutely void. Constitution, art. 9, § 9; Gen St. c. 120, § 48; Laws 1866, c. 10. The covenant, however, should be so construed as to render it valid, and should, therefore, be held to mean that the convict labor should be employed in the then existing shops, or such as the state might thereafter see fit to erect, and that all of such shop-room, which might be necessary for the profitable and convenient employment of the convicts, should be furnished to defendants.
Even if this covenant was valid, however, a breach would not constitute a defence to this action. Performance was not a condition precedent to plaintiff's right of action on defendants' covenants to pay the rent and hire. The covenant alleged to have been broken does not go to the whole of the consideration of the defendants' covenants, and by the terms of the contract the time for performance by the defendants might precede the time for performance by the plaintiff. 1 Wms. Saunders, 320 b, note 4 to Pordage v. Cole; Mattock v. Kinglake, 10 Ad. & El. 50; Cutler v. Bower, 11 Q. B. 973; Judson v. Bowden, 1 Exch. 162; Sibthorp v. Burnet, 3 Exch. 826; Dicker v. Jackson, 6 C. B. 103; State v. W. & St. P. R. Co. 21 Minn. 472, 481; Seeger v. Duthie, 8 C. B. N. S. 45; Tompkins v. Elliott, 5 Wend. 496.
This case is analagous to one where, upon a demise by lease, the tenant covenants to pay the rent and the landlord covenants to make repairs; and in such a case it is perfectly well settled that the covenant of the tenant is an independent covenant. Wash. Real Prop. (4th Ed.) B. 1, c. 10, § 4, par. 2, a; Tuttle v. Tompkins, 2 Wend. 407; Allen v. Pell, 4 Wend. 505; Watts v. Coffin, 11 John. 495; Sickels v. Fort, 15 Wend. 559; Benson v. Hobbs, 4 Har. & J. 285; Hill v. Bishop, 2 Ala. 320. The covenants of the defendants being therefore independent, a breach of the plaintiff's covenant could not be pleaded in bar to an action on defendant's covenants, nor would the matters pleaded in the answer constitute a defence. McCampbell v. Miller 1 Bibb 453; Webster v. Warren, 2 Wash. C. C. 456.
Under such circumstances the defendants' only remedy at common law would have been by an independent action for damages, but under our modern system of pleading the breach may be set up as a counter claim. The change, however, in the mode of pursuing the remedy has not worked any change in substantive legal rights, and the counter claim cannot, therefore, be sustained, unless the facts alleged would constitute a good cause of action in an independent suit. Pom. on Leg. Rem. §§ 731, 733, 738; Waterman on Set-Off, §§ 596, 598; Moak's Van Santvoord, 616, 626; Eastman v. Linn, 20 Minn. 433; Barker v. Walbridge, 14 Minn. 469; Reed v. Newton, 22 Minn. 541. But plaintiff's covenant, as construed by defendants, is ultra vires, and therefore void. The covenant being void, the breach would not constitute a cause of action in an independent suit, and therefore cannot constitute a counter claim in this action.
Again, the covenant was not illegal, but merely ultra vires. This was known to both parties when it was made, and therefore could have formed no part of the consideration for defendants' covenants, as it could have formed no legal inducement to defendants to enter into them. Thomas v. Thomas, 2 Q. B. 851, 859; Broom's Leg. Max. 748; 1 Chit. Con. 24. And even if the plaintiff's covenant formed one of the considerations for those of defendants, this covenant being simply void, and void merely because ultra vires, the other considerations will support the covenants of defendants. Metc. on Con. 216; 1 Par. on Con. (5th Ed.) 455; 1 Chit. Con. 67-8; Pikard v Cottels, Yelv. 56; Crisp v Gamel, Cro. Jac. 128; Jones v. Waite, 5 Bing. N. C. 341; Shackell v. Rosier, 2 Bing. N. C. 634, 646; Wesleyan Seminary v. Fisher, 4 Mich. 515, 526. In any event the defendants can only avail themselves of the breach during the time the rent and hire accrued which is sought to be recovered in this action.
McCluer & Marsh, for respondents.
The warden is by the statute made a corporation sole, upon whom is devolved all the authority possessed by the state for the proper management of the affairs of the state prison. The extent of his authority is therefore not to be tested by the special provisions of the law relating to his appointment and powers, but by the general body of laws relating to the state prison, the object of its creation, the uses to be subserved by it, and the duty and responsibility of the state with reference to it. Gen. St. c. 120, §§ 45, 46, 47 50; Laws prescribing penalties for various offenses to be confinement at hard labor in the state prison; Seymour v. Webber, 1 Ex. Doc. (1872) 14; Jansen v. Ostrander, 1 Cow. 670; Overseers v. Overseers, 18 John. 407. The mere fact that the statute authorizes the letting of convict labor, confers upon the convict the right to labor, and the means necessary for its enjoyment;...
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