delivered the opinion of the court.
After adverting to the state of the pleadings, he said that at the trial of this cause, two bills of exceptions were taken by *49the defendant, the first of which he has abandoned in this court, as also the first prayer in his second bill of exceptions.
The first branch of the second prayer in the second bill of exceptions is, “ that the plaintiff is not entitled to recover, unless the jury shall find from the evidence, that the first clamp of bricks was ready for delivery by the time stipulated in the contract, provided they find that the delay was not caused by the defendant.” This instruction is predicated upon the concession, that the testimony offered was sufficient to warrant the jury, but for this objection as to time, in finding for the plaintiff on all the issues. To test the correctness of the court below, in refusing this direction, the only inquiry to be made is, does the argreement between the parties make this stipulation, as to the time, within which, the first hundred thousand bricks were to be ready for delivery, a condition precedent, the performance of which by the plaintiff, must precede his right to require the defendant to comply with any of the covenants, the infraction of which is made the basis of this action ? That such is not the construction given to this contract by the appellant’s counsel is obvious, or he would not have made the prayer he did, in the first bill of exceptions; nor the first part of the prayer in the second bill of exceptions; both of which are founded on the admission, that the defendant’s engagement to deliver the wood is an independent covenant, not at all depending on the time of the burning of the first kiln of bricks. That it was the design of the contracting parties that a portion of the 350 cords of wood should be used in burning the bricks, will not be denied. If so, a part of it must of necessity be delivered before the burning of any bricks. But there is nothing in the contract itself, nor in the intention of the parties to be collected from it, to show that the wood was to be delivered in parcels, as the burning of the bricks progressed. If so, the argreement would have been shaped accordingly, and not have provided, as it has done, that it should be delivered at the stump “ when called *50for.” Its terms negative such an interpretation. The wood was to he given as a payment of half the price of the whole quantity of bricks to be burnt, and not merely to be used in burning them: as for that purpose, 150, instead of 350 cords, would have been sufficient. We regard therefore, this engagement for the delivery of wood, as an independent covenant on the part of Finley, and with which, he was bound to. comply, without waiting for the burning of the first kiln of bricks within the time limited by the articles of agreement. This disposes of the first branch of the second prayer, in the second exception. But the second part of that prayer presents a different question. It concedes the plaintiff has a right to recover, but it invokes an instruction of the court to the jury, that nothing is recoverable on account of the bricks burnt in the first clamp. If this point could arise under the pleadings in this cause, it would distinctly present the question, whether the stipulation as to time, is to be regarded as of the essence of the contract, and in the nature of a condition precedent; or as a mutual or independent covenant. Believing as we do, that we are not imperiously required to decide this question as to time, under the issues in the case before us, we mean to express no opinion upon that subject; and we are the more inclined to do so, from the consideration that this point has not been fully argued, and that it will come before us in a much more important suit, now upon our docket. Under the issues joined on the 2d, 3d and 4th pleas, it is manifest as regards time, that no question could arise, as those pleas by legal implication admit the truth of all the facts stated in the declaration (of which the time, &c. is one,) except those, which they specifically deny.
It is under the issue joined then, on the plea of general performance, that the appellant must avail himself, if at all, of the violation .of the stipulation as to time. And in considering his right to do so, it may not be amiss to premise, that the plaintiff can recover damages for no other breaches than those charged in the declaration, as the specification thereof *51is an implied admission, that the defendant, in all other respects, has complied with, his contract. It follows, as a corollary, that the plea of general performance in this case, applies only to those covenants which are alleged to have been broken. If it were otherwise, and according to its literal import, the plea of general performance put in issue every covenant on the part of defendant to be performed, it might produce this strange absurdity, that the plaintiff would recover damages for breaches of covenants, whereof he had never complained; but on the contrary, the performance of which by legal intendment, he had admitted by his declaration. To any imaginable declaration which could be framed on the articles of agreement, that form the ground work of the present action, the plea of general performance is inapplicable and vicious. If it be pleaded, even to a debt on a bond conditioned for the performance of covenants, and issue he taken thereon, a verdict on such issue forms no basis on which a judgment can be entered, but a repleader must he awarded. To a declaration like that before us, assigning specific breaches, it must either he regarded as a nullity, or as putting in issue, the acts of omission or commission imputed to the defendant, as violations of his compact. In either aspect, the court below were right in refusing the instruction. The plaintiff avers in conformity to the agreement, that in the month of May, “ he did make and burn in a workman-like manner, on the said farm of the said defendant, called Canton, one kiln of bricks, containing ] 00m bricks, and then and there had the same ready for delivery to the defendant, and did then and there offer to deliver the same.” Instead of traversing this fact as he ought to have done, if he intended to rely upon its falsehood as a bar to a recovery, either in whole or in part, the defendant pleads “ that the said plaintiff never did deliver to the said defendant, any good merchantable brick whatever;” thus, by legal intendment distinctly admitting the allegation, that the first kiln of bricks was burnt and ready for delivery at the time stipulated. This fact there*52fore, the plaintiff need not prove, and the defendant is precluded from controverting it on the trial. The County Court then, could not do otherwise than refuse the direction to the jury which they were called upon to give. Concurring with them in their opinions in both hills of exceptions, we affirm their judgment.
JUDGMENT AFFIRMED.