DAVIS v. WADE, 4 Ala. 208

ORMOND, J. The substance of this agreement is that the plaintiff in error agreed with the defendant in error, a contractor with the Government for the carriage of the express mail, to carry the mail twelve months between two points, ten miles apart, twice in twenty-four hours, within a time stipulated in the contract, for the sum of seven hundred dollars, to be paid quarterly — and in the event he failed at any time to perform the service within the stipulated time, he agreed to be responsible to the defendant for the injury arising from the failure of the mail.

Construing this agreement according to its evident sense and meaning, and the clear intentions of the parties, the covenants were dependent, and the plaintiff therefore could not recover without the performance of the contract on his part, or an offer to perform it. It is so considered by the plaintiff, who avers that he entered upon the execution of the contract and performed it by carrying the mail, according to his agreement, for five months, and was ready and willing to perform it for the rést of the year, but was prevented from so doing by the defendant.

There is, however, another term in the contract out of which the controversy in this case arises. The plaintiff agreed to be responsible for any “ miss mails,” the cause of which occurred on the part of the mail route on which he was to transport the mail.

We think it cannot be doubted that the meaning of this part of the contract is, that the parties were stipulating for the accidental or casual omission to deliver the mail within the prescribed period — that with the best possible management such failures would occur, when the travel was at the rate of ten-ten miles an hour, must have been, and was, foreseen, and such casual omissions were by the agreement provided against by the plaintiff agreeing to be liable to the defendant for the injury resulting to him from such failure. The ten miles upon which the plaintiff agreed to transport the mail, was only a

section of a large route; a failure, therefore, on this part of the route, to deliver the mail within the prescribed time, would generally cause a failure throughout the entire route, from the difficulty, if not impossibility of increasing the speed of the horses on the residue of the route beyond ten miles an hour. It cannot therefore be presumed that the parties contemplated any thing beyond those accidental or casual omissions to deliver the mail in time which might be expected under good management.

The frequent occurrence of such failures was not contemplated by the parties, and would therefore be a failure on the part of the plaintiff to perform the agreement on his part, which was a condition precedent to his recovery.

The stipulation on the part of the plaintiff to be responsible for the injury arising from his failure to deliver the mail in time, was merely an agreement to set off the damage which might result from such omission against the compensation for carrying the mail, and cannot be construed to confer on the plaintiff a right to continue to carry the mail in a negligent or improper manner, to the probable ruin of the defendant, leav-hiin to seek redress in another action.

If, therefore, the plaintiff did not comply with the contract on his part, the defendant had a right to resume the performance himself, in the same manner as if the plaintiff had not entered upon the performance. There was therefore no error in the charge given, or in the refusal to charge as moved for by tire plaintiff, and the judgment is therefore affirmed.