Lord v. Belknap

Shaw, C. J.

The plaintiff sues as the payee of an order for money, not negotiable, drawn by Patrick Calpin on the defendant, and specially or conditionally accepted by him. The order being general, the liability of the defendant depends upon the terms of his acceptance. He accepts, to pay the amount drawn for, $100, when due according to Patrick Calpin’s contract. On reference to the contract, it appears to be an agreement by the drawer of the order, Patrick Calpin, to do the grading on a section of the Portland, Saco & Portsmouth Railroad, in the manner, and upon the terms, therein specified.

The contract, which was made in July, 1841, was, to complete the work by the first day of the ensuing month of June. Belknap stipulated, in consideration of the fulfilment, &c., to pay to Calpin three quarters of the estimated amount of the work, as it should be done, in monthly payments; and when the whole of the section contracted for should have been accepted, as completed agreeably to the contract, the balance due should be forthwith paid to Calpin. It is further pro*283vided, that if, in the opinion of the engineer, the work should not proceed speedily enough, Belknap and company reserved a right to determine that the contract had been abandoned; in which case, the agreement should become null and void, and any balance of money due should be forfeited by Calpin to Belknap and company. So, in another part of the contract, it is stipulated, that if Calpin shall not well and truly perform all the covenants, &c., Belknap and company may dismiss him from the work, and then the contract shall become null and void, and any balance for work done, which would have been due to Calpin, shall be forfeited and become the right and property of Belknap and company.

It may be remarked, in passing, that this contract appears to have been made and executed by Belknap alone, but in behalf of himself and some other person or persons.

These are the parts of the contract, which bear upon the question of the defendant’s liability on his qualified acceptance.

It was conceded by the plaintiff, that the contract had been abandoned by Calpin, either voluntarily, or by dismission under the terms of the contract, on or about the first of June, 1842, and that the unfinished work had been performed by the defendant.

By the defendant’s qualified acceptance, he undertook to pay the plaintiff the §100, when due according to Calpin’s contract. The defendant, upon the evidence, contended that by the terms of the contract, nothing was due to Calpin, until the final completion of the same, and that nothing was due to the plaintiff upon the acceptance, according to the terms of the contract.

The chief justice of the court of common pleas decided otherwise, and instructed the jury, that the defendant was liable upon his acceptance, if it should be proved to the jury, that a sufficient amount of funds, payable from the three quarters advanced payments, provided for in the contract, over and above other liabilities assumed to be paid by Belknap, previous to the acceptance of the order, at any *284monthly settlement between the date of the acceptance and the time of the abandonment, was in the defendant’s hands, unless the defendant could satisfy the jury, that the damage, sustained by reason of the abandonment of the contract, exceeded the one quarter reserved by its terms.

The court are of opinion, that this direction was sufficiently favorable to the defendant; and it may be doubtful, whether the last clause is not too much so, if, as we suppose, it referred to a damage occasioned by an abandonment after such quarterly payment became due.

The stipulation for the final payment was dependent, and could only be claimed after a completion of the work; but we think the monthly payments were independent.

Whether mutual stipulations are dependent and conditional, or independent, is sometimes a difficult question. But, where time is given for performance on one side, and payments are to be made on the other within such time, it is certain that the making of payments cannot depend upon a full and complete performance. Such were the terms of the contract; it was to be completed in June, and monthly payments of three quarters made in the mean time. The acceptance was given in December. If any work was done between that time and that when the abandonment took place, three quarters of the amount of the pay for such work became due and payable. We think, therefore, that the jury were rightly instructed, that, if, on any such monthly payment,'there was $100 due, the defendant became bound to pay the plaintiff by the terms of his acceptance.

The evidence being properly left to the jury, upon a direction, which was right in point of law, the verdict for the plaintiff establishes the fact, that the amount stated was due by the contract, upon the stipulated monthly payments.

But it has been contended, that, by the terms of this contract, the subsequent abandonment of the work, or dismission of the contractor, operated as a forfeiture, not only of the one quarter part reserved to the final completion, but also of any unpaid balance due on the anterior monthly payments.

*285Certainly, a contract like this, providing for a dissolution and forfeiture, at the election of one party, is to be construed strictly, against such forfeiture. Penalties and forfeitures art not to be favored in law, or tolerated in equity.

But supposing, that, by the terms of the contract, on such dismissal, any balance, which would have been due to Calpin should be forfeited and become the property of Belknap, such balance would not include money actually paid, according to the terms of the contract, or at Cal pin’s request stipulated to be paid to another person, without regard to such possible forfeiture.

Besides, by the terms of the defendant’s acceptance oí Calpin’s order, he became liable to pay the amount to the plaintiff, when so much should be due in cash upon any monthly payment. When that event happened, the plaintiff’s right became complete and vested, and could not be affected by any subsequent default of Calpin. We think the directions were right.

Exceptions overruled.