48 Ind. 385 | Ind. | 1874
Action by the appellee against the appellant, upon a promissory note executed by the defendant to the plaintiff, for the sum of four hundred dollars. Judgment for the plaintiff.
The defendant answered that the note was 'given for the consideration, in part, for certain land, situate in said county, purchased by the defendant from the plaintiff, for which the plaintiff executed to the defendant a warranty deed, which is set out, and that the covenants in the deed had been broken, to the defendant’s damage in the sum of eight hundred dollars, in consequence of the execution by the plaintiff of the following instrument before the execution of the deed, viz.:
“ Know all men by these presents, that Thomas B. Coan, of Harrison township, of Clay county, State of Indiana, for and in consideration of one dollar to him in hand paid by the Iron City Land Company, a corporation existing under the laws of the State of Pennsylvania, the receipt of which is hereby acknowledged, and the further consideration of ten cents per ton for all coal, iron ore, clay, salt, petroleum, and limestone, which said Iron City Land Company, their successors, or assigns shall mine and carry away , from the premises hereinafter described, and five cents per perch for each and every perch of building stone quarried and removed from said premises, which payments shall be made annually, and the further consideration that the Iron City Land Company shall induce the Cincinnati and Terre Haute Railroad Company to build
“ In witness whereof I have hereunto set my hand and seal ■on the 10th day of November, 1871.
“Thomas B. Coan. (Seal.)”
It is not alleged in the answer that the Land Company had
A demurrer for want of sufficient facts was sustained to this paragraph of answer, and the defendant excepted. This ruling presents the only question involved here. .
The matters set up in the answer, which is in the nature of a counter-claim, entitled the defendant at most to nominal damages only. A judgment will not be reversed where nominal damages only are in controversy. Patton v. Hamilton, 12 Ind. 256. The defendant has not been injured, except nominally, by the alleged breach of the covenants. The Land Company, so far as appears, have never taken possession of any portion of the land. Indeed, the instrument expressly stipulates that the land should not be occupied by the company until the railroad should be completed. Then, the railroad was to be completed within the period of five years from the date of the contract. A failure to complete the railroad within the time provided for renders the contract “ null and void to all intents and purposes.” Whether the defendant will be injured by the breach of the covenants, except nominally, depends upon a contingency which has not yet happened, viz., the completion of the railroad, and that, too,, within the time limited. Perhaps the defendant may be substantially injured in the future. But he has not been as yet,, nor are any facts shown from which it appears that he will be in the future. The case clearly falls within the principle of those in which it has been held that a breach of the covenant against incumbrances only entitles the covenantee to nominal damages, until the latter has removed the incumbrance or been in some way injured thereby. Reasoner v. Edmundson, 5 Ind. 393. And see Email v. Reeves, 14 Ind. 163; Marvin v. Applegate, 18 Ind. 425.
The appellant claims that as he could not remove the claim of the Land Company, as he could a mere lien for money, he ought to have substantial damages. But how shall they be estimated? As yet he has not been substantially injured,
The judgment below is affirmed, with costs and five per cent, damages.