#### BENJAMIN JOHNSON v. NAT DUNN et al.

Where one covenanted to hire slaves, in pairs as sawyers, at so much per month, to be delivered on several given days, and he failed to deliver them on the •days stipulated, but afterwards two of the pairs were produced and accepted, and one pair was not produced at all, it was Held that these stipulations were several and divisible, and that the hirer was entitled to recover on the covenant for the services of the slaves delivered and accepted.

Where it was covenanted that certain slaves should be hired for a year, at so much per month, and it was stipulated that the owner should have the right to take them away whenever he became dissatisfied with their treatment, and there was a further stipulation, to refer matters, in dispute between them, to a common referee, it was Held that this agreement to refer, did not prevent the owner from exercising his discretion as to taking them away, and, therefore, that this act formed no bar to his recovery for the service they had rendered.

Action of covenant, tried before Caldwell, Judge, at the last Fall Term of Halifax Superior Court.

The plaintiff declared upon the following instrument, viz :

“ Memorandum of an agreement, this day entered into between Hat Dunn and Benjamin Johnson, of Halifax county, Horth Carolina.

“ The said Johnson agrees to hire to said Dunn three pairs of sawyers, at twenty-five dollars per month per pair, to be paid on or before January 1st, 1856. One pair to commence work by the 19th of February, and the other two by the first of April; provided, they do not run away before.

*123“ The said Johnson agrees for the said Dunn to keep the said hands all the year, at the above rates, unless he becomes dissatisfied with their treatment, in which case, we agree to refer the matter of disagreement to two men, chosen by the parties.

“ And L. II. B. Whitaker hereby binds himself, as security, for the payment of their hire at the above mentioned rate. Witness our hands and seals, at Halifax county, this the 13th day of February, 1855.” Signed by the plaintiff, defendant, and Whitaker, with seals affixed to their names. The breach alleged was, the non-payment of the hire of the sawyers according to the contract.

It appeared in evidence, that the first pair of sawyers were delivered by the plaintiff to the defendant, on the last of February, or the first of March, 1855 ; the second pair, on the 10th of April thereafter, and that the third pair were not delivered at all, but were hired, by the plaintiff’, to one Hyman for the year. It appeared also, that sometime in the summer of 1855, the plaintiff wrote a letter to the defendant, in which .lie complained that the sawyers, then in the latter’s possession, were not well treated ; that their food was not of a proper kind ; that no house had been erected as defendant had promised, and that they were worked in a dense, sultry and unwholesome swamp. The slaves, hired by Hyman, went into his possession about the first of August, 1855, and remained with him until the first day of January following. It was proved also, that the plaintiff and defendant met on the 23rd of that month, when the plaintiff said to the defendant, “I suppose my negroes have run away.” The defendant replied, that they had gone away some two or three weeks before. The plaintiff, thereupon, proposed to refer the matter to men. The defendant objected, unless the assent of Whitaker could be obtained. The latter could not be found, and no reference was made on that account. In the course of this last conversation, the defendant demanded the return of the sawyers, which was refused by the plaintiff.

The Court charged, that according to the interpretation of *124the covenant, as understood by him, if the jury believed the witnesses, the plaintiff could not recover ; that there was evidence to be left to them, that the plaintiff had assented to the sawyers going into the possession of Hyman.

Plaintiff excepted to the charge. The jury found a verdict for the defendant. Judgment. Appeal.

Miller and Moore, for the plaintiff.

Ooniglcmd, for the defendants.

Peaesoít, C. J.

The defendant resists a recovery, on the ground, that there are stipulations on the part of the plaintiff, which were dependant covenants, and a performance of which, it was necessary to allege and prove asa condition precedent to the right of action, and that the proof failed in these particulars. His Honor was of opinion with the defendants, and held that, according to the proper construction of the covenant, the evidence did not entitle the plaintiff to recover. There is error.

1st. The contract was entire in regard to the hiring of the three pairs of sawyers, and the plaintiff could not recover as he had failed to deliver one pair.

This Court is of opinion, from the wording of the covenant and the nature of the subject, that it was devisible, and was several in respect to the pairs of sawyers. The time at which they were respectively to commence work, is several, and although the whole price is to be paid at the end of the year, yet, a several rate of twenty-five dollars a month, per pair, is fixed, and, considering the nature of the work, the only certainty required, was in reference to a pair, as a saw cannot be operated without two practiced hands.

2nd. Neither pair was delivered, so as to commence work at the time stipulated.

The covenant seems to allow some margin in regard to time, by making the qualification, “ provided they do not run away before;” but independent of this, the defendant, Dunn, having accepted them after the time, and having taken the benefit of their labor, in part performance of the covenant, is not at lib-*125ertv to refuse to pay a rateable price for it, because, he "was not entitled to their services, except under the covenant. It may be, he might have refused to accept them after the time, and entitled himself to recover damages for an entire breach, but having treated it as continuing, by accepting them under it, he became liable for its performance on his part; and is left to a cross action for damages in respect to a prior breach on the part of the plaintiff, which was severed, and made independent by his subsequent acts — treating the covenant as still continuing and in force. It is a clearly recognised principle, that if there is only a partial failure of performance bjr one party to a contract, for which there may be a compensation in damages, the contract is not put an end to ; Franklin v. Miller, 4 Ad. & Ell. 599; Boon v. Eyre, 1 H. Bla. 273; Campbell v. Jones, 6 T. R. 570.

3rd. The plaintiff violated the covenant by taking away the two pair of sawyers, and hiring them to one Hyman, before the expiration of the year. This objection is fatal according to the principle of Brown v. White, 2 Jones’ Rep. 463, and Dula v. Cowles, ibid. 454, unless the plaintiff had a right to take his hands away by the terms of the covenant. This raises a question of construction. The stipulation that Johnson “ may take the hands away, if he becomes dissatisfied with their treatment,” necessarily constitutes him the judge in regard to the matter, and gives him the right to take them away whenever he is willing to assume the responsibility; for, unless he is to be the judge, so as to have the right to B.atpromptly, his purpose, in making the stipulation, could not be effected, and to require him to wait, until the question could be settled, whether or not he had good grounds for his dissatisfaction, or was merely making a pretext, would involve a continuation of the very condition of things, against which it was the object to guard.

The additional stipulation, “ to refer the matter of disagreement to two men, to be chosen by the parties,” would not have the effect of preventing this consequence, if it be treated as a condition precedent, for the other party might refuse to *126go into a reference, or a difficulty occur as to the choosing of their men, or delay be caused in some other way, and it could not have been the intention, as is to be inferred from a consideration of the subject-matter of the contract, to expose the right of the plaintiff to take away his hands, if he became dissatisfied with their treatment, to be in this way hindered, delayed, or defeated. This stipulation is satisfied as giving to it the effect of an independent agreement to refer the matter of disagreement, after the plaintiff had taken away liis hands. So that, in that case, instead of the plaintiff bringing an action for damages, by reason of the maltreatment of his slaves, as alleged by him, or of the defendant bringing an action for breach of covenant, in taking them away without cause, as alleged by him, such matter of disagreement, was to be settled by means of a reference.

This construction renders the two stipulations consistent, is justified by the wording of the instrument, and gives effect to the intention of the parties.

Per Curiam, Judgment reversed, and a venire de novo.