long live, yielding and paying a certain yearly rent. And it was further agreed, that the said John Gilbert, the lessee, his executors, administrators, and assigns, should at all times and seasons of burning of lime, supply, furnish, sell, and fit the said late earl, his heirs and assigns, or any of his tenants, within the county of Stafford, for the improvement of the land, buildings, or repairing the buildings, at four-pence for every horseload, being three computed strikes of good lime at the kiln, and so in proportion for every greater or lesser quantity that he or they shall want. The declaration then proceeded to set out the entry of the lessee, the death of the lessor, and the descent of the reversion to the plaintiff as heir at law. It then stated, that during the continuance of the term, on the 14th April, 1818, being a time and season of burning of lime, at Stow aforesaid, in the said county, the said plaintiff having occasion for a large quantity, to wit, twenty horse-loads of lime, each horse load being three computed strikes, for the improvement of the land and buildings of him the said earl, within the said county of Stafford, did request and demand of and from the said Nathaniel, so being such surviving executor as aforesaid, to supply, furnish, sell, and fit him therewith, at the said kiln, for the improvement of his said land and buildings, and was then and there ready and willing to pay, and offered to pay to the said Nathaniel, fourpence for every horse-load of lime, according to the form and effect of the said indenture; and then alleged a breach on the part of the defendant in not supplying the lime so demanded. The defendant, after craving oyer, and setting out the indenture, by which it appeared that the yearly rent Kk 3 reserved reserved was 107., pleaded, first, that he did not for a long time before the said fourteenth day of April, 1818, nor at any time from thence hitherto, burn or convert into lime, nor was there during all or any part of that time, burnt or converted into lime, by the said Nathaniel, or any servant or servants of his, or on his account, any limestone raised, gotten, found, or produced, from, out of, in, or upon the said demised premises, or any part thereof, the enclosed land in the said manor of Alton, or any part thereof, or the township of Farley and Cotton, or either of them, or any part thereof. Secondly, that there was not at the time of such reqnest and demand, as in the declaration mentioned, nor for a long time before, nor has there been at any time hitherto, any lime upon the said demised premises, or elsewhere, which had been produced or made by or from linestone raised, gotten, found, or produced, from or out of the said demised premises, or any part thereof, or from, in, or out of the inclosed land, in the said manor of Alton, or any part thereof, or from, in, or out of the said townships of Farley and Cotton, or either of them, or any part thereof, and which had been burnt or converted into lime in any kiln or kilns on the said demised premises, or any part thereof, or within the said manor and township, or any of them, or elsewhere, by the said Nathaniel, or any person or persons acting by or under his authority, or in his power or possession, or otherwise, by or wherewith the said Nathaniel could have supplied, furnished, sold to, or fitted, the said quantity of lime so demanded. And thirdly, that before any such demand as in the declaration mentioned was made, all the lime produced from limestone raised, found, gotten, or produced from, in, out of the said demised premises, premises, or the inclosed land within the said manor, or within the townships of Farley and Cotton, by the said Nathaniel, or any persons or persons claiming by, through, from, or under him, or by or under the indenture in the declaration mentioned, had been fairly sold, disposed of, taken, or carried away, from and off the said demised premises, inclosed lands, and townships, and that there was not at the time of such demand, or at any time hitherto, any lime which had been burnt by the said Nathaniel, or any person or persons by his authority, or claiming by, from, or under him, or under or by virtue of the said indenture in the declaration mentioned, wherewith he the said Nathaniel could have supplied, furnished, sold to, or fitted the said quantity of lime so demanded. Demurrer and joinder. The question Peake, in support of the demurrer. arises on the construction of the defendant's covenant to supply lime at a given price; and it is in fact this, whether he can excuse himself from the performance of it by his own act in refusing to burn any lime whatever. The words are, that defendant shall so supply lime, at all times and seasons of burning lime; which must mean, at all times and seasons when it is usually or conveniently burnt; and being a covenant by the defendant, it must be construed most strongly against him. Here, only a small rent is reserved; and it is obvious from the whole instrument, that the principal remuneration which the landlord was to receive for the lease was the benefit resulting to him under this covenant. According to the defendant's construction, he is to be at liberty to get as much limestone in a raw state, for 1819. Earl of SHREWSBURY against GOULD. 1819. Earl of SHREWSBURY against GOULD. sale, as he shall please and only pay the rent of 101. But the true rule is given in Griffith v. Goodhurst (a), where it is said that you must construe a covenant according to the intention apparent on the whole contract; and that intention most obviously here is, that the defendant should not only get limestone, but also burn it into lime; and if by his own act he makes it impossible to fulfil his covenant, that is a breach of it. Sir Anthony Mayne's case. (b) Puller, contrà. The first part of this lease grants to the lessee free liberty to dig the limestone at his will and pleasure, for burning and converting the same into lime. Now if the construction contended for by the plaintiff be adopted, it will no longer be a burning at the free will and pleasure of the lessee, but at that of the lessor. The words are "at all times and seasons of burning lime:" now this means only when the defendant shall burn lime, which of course he will do whenever, from the demand in the market, it is profitable to him so to do. But in the way the other side construe it, it amounts to this, "at all times when lime can be burned," which is at all times: then if so, the lessor may compel this lessee to burn for him at this stipulated price constantly, and if he chooses to lay up any indefinite quantity of it at the lessee's expense, he may do so; but then what necessity was there for the reservation to the lessor himself of a power to burn lime for his own and his tenants' use. Taking the whole together, it may be construed thus: the lessor is entitled to receive lime at the stipulated price, whenever (a) Sir T. Raym, 464. (b) 5 Coke, 21. the the lessee burns for sale. If circumstances prevent the lessee from so doing, then the reservation empowers the lessor to burn for himself; and the lease should be construed, if doubtful, in favour of the lessee. Rhodes v. Bullard (a) is precisely in point; there the defendant covenanted that the plaintiff should have the use of the pump in his yard jointly with him whilst the same should remain there, paying half the expences of keeping it in repair; yet it was held that he was not liable for a breach of covenant in taking away the pump altogether. So here, the covenant is, in fact, to furnish him whilst the defendant continues to burn it; and if he discontinues to do that, it is no breach of the covenant. Peake, in reply, was stopped by the Court. ABBOTT C. J. It appears manifestly, from the whole lease, to have been the intention of the parties that the lessee should not only raise limestone, but also burn it into lime; and that he should at all times and seasons (by which I understand the usual seasons of burning lime) furnish and sell lime at a given price to the lessor and his tenants within the county of Stafford, for the improvement of their lands. The lessee, however, contends that he may, under this covenant, get the limestone and not burn it into lime, and that by so doing he is exempted from the burden of selling it at the stipulated price to the lessor. There are two of the previous clauses in this instrument which throw considerable light on this subject, and prove that the construction contended for by the plaintiff is the rea (a) 7 East, 116. 1819. Earl of SHREWSBURY against GOULD. sonable |