Opinion. not sustained. It is argued in support of this position, that the agreement (which is made part of the bill) creates, in legal effect, a contract between the association and the plaintiff, but none between the plaintiff and the defendant; and that the suit should therefore have been brought against the association. To this suggestion we cannot give our assent. The only question to be determined is the purpose and intent with which the plaintiff executed this agreement. Did he intend to bind himself or the association? And this question, we think, may be easily answered upon a simple examination of the terms which the plaintiff has seen fit to employ. Here all the words of promise are the words of the defendant. It is he who agrees to pay the guaranteed salary of two hundred dollars per month, the office rent and the commissions. And he, it is, who signs the agreement without the addition of any words giving notice to the plaintiff that he was merely applying "the executing hand as the instrument of another." In this case we have no parol evidence to aid us in the construction of the contract. It is, however, on its face the personal contract of the defendant Matthews, and unless we are prepared to reverse the rule that a party is to be held to intend what is the plain and manifest import of the language he has used, it must be so held. Nor can the circumstance that he in one place in the body of the instrument speaks of himself as the secretary of the Mutual Endowment Association, overcome or even weaken the effect of these evidences that the contract was personal as to Matthews, and not intended to bind the association. At most, this statement that he was secretary of the association, simply indicates, to use the language of Chief Justice Shaw, in Bradlee v. Boston Glass Co., 16 Pick. R. 347, quoted by Moncure, J., in Early v. Wilkinson & Hunt, 9 Gratt., at page 71, "the person for whose account his (the defendant's) statement was made," but does not indicate an intention on the defendant's part to do a mere ministerial act in giving effect and authenticity to the promise of another. Opinion. But it is said, that if this be not the contract of the association, and it is a pregnant circumstance in this connection that defendant no where distinctly alleges in his answer that it was the contract of the association, yet the contract was an entire one; that the services of Jenkins were to continue for one year; and that it was incumbent upon the plaintiff to allege and prove, as a condition precedent to his right to recover, complete performance of the condition, or at least that he was deterred by the defendant from the performance thereof. We do not, however, so understand the law. The contract here was, no doubt, that the plaintiff should serve for a year, but the service for the year was not, and in the nature of things could not be, a condition precedent to the plaintiff's right to recover anything, for by the express stipulation of the contract the plaintiff was entitled at the end of each month to recover the salary for that month of $200. The contract, as a matter of fact, was nothing more nor less than an engagement for one year's service, payable by the month. In White v. Atkins, 8 Cush. 367, the plaintiff declared on a special contract, in the form and words following: "Boston, 6 Feb'ry, 1849. Articles of agreement made between Thomas G. Atkins and Earl C. White. Said White is to carry on my farm at Bedford, from 1st April, 1849, to 1st April, 1850; and the said White and wife is to have for his and her services the use of the house and furniture, all fire-wood needed, and also to have $150, one hundred and fifty dollars per year, payable monthly, if he wishes; also the provisions and board, the help and washing that are needed: also his children." The defendant pleaded entirety of contract to serve a year. The plaintiff had left on the 8th July, 1849, and at that time had demanded his monthly payments. Shaw, C. J., at page 370, said: "The contract of the plaintiff was, no doubt, for an entire year's service; but the performance of this entire contract was not a condition precedent to the plaintiff's right to recover anything, because the plaintiff was, at his option, entitled to receive his pay Opinion. monthly. This is one of the tests to determine whether mutual contracts are dependent or independent. If the whole is to be performed on one side, before anything is to be done on the other, they are dependent, and performance is a condition precedent. But if something is to be done on one side, before the whole can be performed on the other, then they are independent. So here, where payments were to be made monthly, at the option of the plaintiff, that is, within the year, the performance of a year's service could not be a condition precedent to demanding a month's pay. Couch v. Ingersoll, 2 Pick. 292." He then, further on, remarks, "that a dependent stipulation is a condition, and performance must be averred and proved, in order to recovery, but that mutual and independent stipulations are not conditions, but each party has a remedy by action for non-performance by the other, without showing performance on his own part." And he then points out, as did Foot, J., in his dissenting opinion, in Peck v. Burr, 10 N. Y. 301, that in Real v. Moor, 19 John. 337, the court took care to remark, that in that case there was no promise to pay monthly. In Tipton v. Feitner, 20 N. Y. 431, Selden, J., in the course of his opinion, says: "It is plain of itself, and well settled by authority, that where by the terms of a contract a payment by one party is to precede some act to be done by the other, then the performance of the act cannot be treated as a condition of the payment." And in the same case, Denio, J., at page 479 of the report, puts the case of a contract for a year, the employer agreeing to pay the servant ten dollars at the end of each month; there having been a part performance and subsequent breach by the servant, and the employer being in arrear for several full months. And he then admits that in such a case the servant has the right to recover the wages earned, subject to a recoupment of the master's damages for the time covered by the breach. Now, applying the principles thus announced to the circumstances of this case, we think that the plaintiff was entitled to recover, and that the Opinion. court did not err in overruling the demurrer to the bill. Upon a full review of the case, there being no evidence that the defendant has sustained any damage for the time covered by the breach, as set out in his answer, we are satisfied that the decree of the circuit court of Fauquier county is right, and it must be affirmed. DECREE AFFIRMED. Syllabus-Statement. Richmond. HALL'S FREE SCHOOL TRUSTEES V. HORNE. MAY 7TH, 1885. CONSTITUTION-Public free school system.-Hall's Free School, incorporated by act of assembly passed February 6th, 1846, is no part of the uniform system of public free schools contemplated by the constitution; and, therefore, the act of assembly approved December 1st, 1884, (Acts Extra Session, 1884, page 173) providing that the superintendent of public schools in the county of Hanover should pay over in each and every year, commencing with 1884, out of the school quota for Beaver Dam district, in the said county, to the trustees of Hall's Free School, a sum equal to the salary paid to any teacher of a school in said district having a like attendance of scholars, to be by them applied to the support of said Hall's Free School, is unconstitutional and void. State Female Normal School v. The Auditors, 79 Va. 233. Upon petition of William Nelson and six others, trustees of Hall's free school in Beaver Dam district in Hanover county, for a writ of mandamus, to compel R. R. Horne, treasurer of said county, to pay to them, as such trustees, the sum of $150, to be appliedto the benefit of said Hall's Free School, in pursuance of act of assembly passed February 6th, 1884. Acts Extra Session, 1884, page 173. Opinion states the case. Thomas N. Page and H. T. Wickham, for the petitioners. Sands, Leake & Carter, for the respondent. |