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![handle is hein.slavery/ssactsengr0322 and id is 1 raw text is: THE WATERFORD, WEXFORD, WICKLOW, AND
sideration on both sides, that is, forms a part of the consideration on the plaintiff's
side for the defendant's covenant on the other, and a breach of such covenant may be
paid for in damages, and the whole of the remaining consideration hits been had by
the defendant, the covenant is independent, and the performance of it is not a
condition precedent.
The reason of the decision in these cases is, as is observed by the learned editor,
that where a person has received a part of the consideration for which he entered
into the agreement, it would be unjust that, because he bad not had the whole, he
should therefore be permitted to enjoy that part without either paying or doing
anything for it. Therefore the law obliges him to perform the agreement on his
part, and leaves him to his remedy to recover any damages he may have sustained in
not having received the whole consideration.
It is remarkable that, according to this rule, the construction of the instrument
may be varied by matter ex post facto; and that which is a condition precedent when
the deed is executed may cease to be so by the subsequent conduct of the covenantee
in accepting less : as in the cases referred to, the defendant, in the first, might have
objected to the transfer, if the plaintiff had no good title to the negroes and refused
to pay; in the second, he might have objected to the payment if the plaintiff had
refused to transfer the patent, though he had been willing to teach the [442] art of
bleaching. But this is no objection to the soundness of the rule, which has been much
acted upon. But there is often a difficulty in its application to particular cases, and
it cannot be intended to apply to every case in which a covenant by the plaintiff forms
only a part of the consideration, and the residue of the consideration has been had
by the defendant. That residue must be the substantial part of the contract; and if,
in the case of Boone v. Byre, two or three negroes bad been accepted, and the equity
of redemption not conveyed, we do not apprehend that the plaintiff could have
recovered the whole stipulated price, 4nd left the defendant to recover damages for
the non-conveyance of it.
Whether the rule can be applied to the present case has been a matter of great
doubt in the minds of some of us: but, after much consideration, we agree that it is
not applicable. If this had been an action on a covenant to pay an apprentice fee at
the end of the term, and the apprentice had served the whole period, and had had the
benefit of instruction as such in two of the trades, it would, we are disposed to think,
have been no answer to the action that the plaintiff had discontinued one. But this
is an action for not continuing to serve as an apprentice; and although the later
services of an apprentice are much more valuable than the early, and are in part a
compensation to the master for his instruction in the commencement of the apprentice-
ship, and so are analogous in some degree to an apprentice fee payable in futuro, yet
the immediate cause of action is the breach of the contract to serve, and the obligation
to serve depends upon the corresponding obligation to teach as an apprentice; and, if
the master is not ready to teach in the very trade which he has stipulated to teach,
the apprentice is not bound to serve. To this particular covenant to serve, the
relative duty to teach seems to us to be directly a condition precedent; and we are
not able to distinguish between the three trades of [443] auctioneer, appraiser, and
corn-factor, so as to say that one is more the substantial part of the contract than
another.
As the plaintiff by his own fault has disabled himself from acting as a master in
all the three trades, he has no right to complain of the defendant's son refusing to
continue to serve in any.
Our judgment will therefore be for the defendant.
Judgment for the defendant.
THE WATERFORD, WEXFORD, WICKLOW, AND DUBLIN RAILWAY COMPANY V.
DALBIAC. May 2, 1851.-By the 22nd section of the Waterford, Wexford, &c.
Act, 10 & 11 Viet. e. lxi., it is enacted, that, so soon as the sum of 1,500,0001.
shall have been subscribed &c., it shall be lawful for the Company to put in force
all the powers of the said Act authorising the construction of the said Railway,
and of the Acts therein recited, viz. the Lands Clauses Consolidation Act, 8 & 9
Vict. c. 18, and the Railways Clauses Consolidation Act, 8 & 9 Vict. c. 20, as
regards that portion of the said Railway, situate &c. :-Held, that the raising of
6 EX. 42.](ViewImageLocal?handle=hein.slavery/ssactsengr0322&div=1&collection=&method=preview&ext=.png&size=3)