27 Barb. 638 | N.Y. Sup. Ct. | 1858
The demurrer which was sustained at the special term presented two grounds of objection to the complaint: 1. The want of facts sufficient to constitute a cause of action. 2. A defect of parties, for not having joined OS&e and Crane with the plaintiff as parties plaintiff.
I. Assuming, for the present, that the proper parties are before the court, is a cause of action sufficiently alleged ? The defendant argues that it is not, for the reason that as the complaint does not allege that the covenants for the breach of which the action is brought were contained in the deed of 5th June, 1845, they must be presumed to have been waived or extinguished, or merged in the deed; that after the execution of the deed the agreement must be regarded as null and void, and the deed as the sole measure and interpreter of the rights of the parties. I think this is too narrow and rigorous a construction of the contract, for these reasons; 1. The deed, though no specific time is named in the articles of agreement for its execution, was in fact executed on the 5th day of June, 1845, (or bears date on that day,) only two days after the date of the articles of agreement, and a long time prior to the period when the filling in was to be done, and the road was to be built; and therefore no presumption properly arises that the work was done or its performance waived. 2. There seems to be no legal necessity for repeating in the deed the stipulations in the articles of agreement; they are both sealed instruments, ¡and of equal dignity. The conveyance of the lands does not
• For these reasons I think that the complaint; contains' a sufficient statement of facts to constitute a: cause.of action.
,TI. Assuming this to be so, the second and principal ques- ■ tion arises, Are all the proper parties plaintiff before the court for the enforcement of that part of the contract whose breach is alleged? ; ¡The action is-for'a breach of the covenant-to raise.and -filLin the ground, so as to provide a good road. This covenant was made with Atwood, Oole &-Crane. -Atwood alone sues for its breach. Prima facie the others are. equally
'. By the covenant prosecuted, the defendant and Cushman agreed" to raise and fill in the grounds- from 4th street to 2d street, so as to provide a good road for the party of the second part, who should-be permitted to use such road until an avé- ■ nue to he opened in lieu of it should he opened and filled, fit for use ns a road, and who should also be permitted to take immediate possession of the bargained premises. The filling- in of the road to he done within 25 days of the date of the-articles, so far as to make it convenient for-loads to pass over it, and to be coinpleted within 60 days of the same date. . The breach alleged, Is; that the-defendant andCushman did not,- within said-25 days, raise and fill in the grounds so as to provide a good road; nor
I think also, in the second place, that a breach thus alleged is ample and comprehensive enough to embrace all damages immediately or remotely flowing from an infraction of the covenant. The act is single and entire, and is not to be performed in detached parts or at successive periods, or to be renewed from time to time. When once done it is completely done, and the duty is at an end. It is not in its nature a continuing obligation,'but is fully and forever discharged when the road is completed. There is no obligation to repair or to rebuild, and if work of that kind' is needed, I think it must be performed by the party using the road and thus creating the necessity for repairs, after the road shall have been originally delivered to or accepted by the party for whose benefit it was made. The act to be performed being thus single and indivisible, performance discharges the entire obligation; non-performance exposes the offending party to the penalties of an entire breach. The cause of action, if it arises at all, arises at the end of 60 days, and is then full and complete. If the road, as stipulated, is not then complete, a fall and perfect cause of action exists; there has been a total failure to perform. All the damages which the suffering party can ever be entitled to recover for the non-making or completion of the road, have in
I think these are all legitimate and logical results from the familiar rule that only one action can be maintained for the breach of an entire contract. (Bendernagle v. Cocks, 19 Wend. 207. Sedgwick on Damages, 224.) To apply a different rule, the contract must be a continuing contract, and this is not of that character. The road is to be built—not forever thereafter to be maintained or kept in repair. The obligation to repair, or to keep in repair, is construed as a continuing obligation; because from its very nature it is applicable to successive acts of waste or dilapidation consequent upon continued use of property. (Crain v. Beach, 2 Comst. Rep. 86.) I doubt very much whether successive actions will lie for damages accruing by the mere lapse of time from one single neglect to repair, without a fresh breach of duty arising from some new and affirmative act or changed relation of the parties. (See Shaffer v. Lee, 8 Barb. 420.) But I do not deem it necessary to discuss that question. The cases in the books are somewhat conflicting, but the confusion arises mostly from the difficulty of determining in the particular case as to the continuity of the obligation. I know of no case, where the act is single and the breach is total, that entire damages are ' not recoverable.
Several cases have been decided bearing "on this question,
If the suit had been then brought they all would have been obliged to join as plaintiffs therein, and as already stated, would have been entitled to recover damages as for an entire and perpetual breach; the damages were not severable. They represented then the entire cause of action. Have they parted with it since ? In other words have they assigned to the plaintiff their interest in the cause of action ? The defendant claims that they have not; that upon breach of the covenant it became a mere chose in action, like a breach of the covenant of seizin in a deed, (Bingham v. Weiderwax, 1 Comst. 509,) which was to be enforced, then and in the future, by the parties then in the possession of the right, or their legal representatives. As a question of fact I do not see upon the face of the complaint that the cause of action in question was ever transferred to the plaintiff, unless it passed by operation of law. Cole & Crane neither conveyed nor assigned any thing nor agreed to do so, until the 1st of February, 1847.
I do not therefore deem it necessary to discuss the question whether this is a covenant running with the land and passing to assignees. ■ The defendant contends that it does not: 1. Because assignees are not expressly named in the articles of agreement. 2. Because the covenant is to do something off from the land, and separated from it by a public street, (2d street,) and not connected with the land nor appurtenant to it. 3. Because it relates to a thing not in esse at the time of making the covenant. On the other hand the plaintiff contends that it is essentially a covenant for a right of way, intended for the use of, and incident and appurtenant to, the real estate. 2. That the word assigns is not necessary, because we must look at the spirit and intent of the covenant, and relating to land and intended to benefit real estate it runs
Wright, Gould and Hogeboom, Justices.]
For reasons before stated, I do not regard this last proposition as sound, or as announcing the correct view of the law; nor the breach offfhe covenant as alleged in the complaint as intended to cover continuous breaches, but only as the general breach negativing the performance of the covenant as contained in the articles. And if I am right in the view above taken, that the covenant, when broken, converts the claim into a chose in action, for which the remedy must be sought by the parties-interested in it at the time the cause of action accrued, unless it has been subsequently assigned; it is unnecessary to investigate the somewhat embarrassing question whether this belongs to that class of covenants which run with the land.
The result is, that there is a defect of parties plaintiff in the action; that the court below were right in their disposition of the case; and that the judgment of the circuit court must be affirmed.
Affirmed by Court of Appeals, September term, 1858.