122 Ky. 348 | Ky. Ct. App. | 1906
OPINION op the Coubt by
— Reversing.
In 1888, the appellant, Gteorge Henry Flege, by deed conveyed to the Contracting & Building Company, the subsequent vendor of appellee, its successors and assigns, a part of a lot of ground belonging to him, situated in Covington, Kentucky, for the purpose of building and maintaining thereon a line of railway. In addition to the money consideration provided ior in the deed, that instrument contains the following covenant: “It being, however, understood and agreed, and said agreement being in part the consideration of this conveyance, that the said Contracting & Building Company is to at once erect a stone wall along the line of said Flege’s lot, adjoining
It is said that the learned trial judge was of opinion that plaintiff’s cause of action was barred by the statute of limitation, as shown on the face of the petition, and for this reason the demurrer was sustained and the petition dismissed. However this may he, appellee contends on this appeal that, when the retaining wall was originally built of wood, instead of stone, as covenanted for, this was a breach of the covenant for which the appellant was bound to institute an action to recover all the damages that could accrue to him under the contract, and that in default of such action, the statute of limitations commenced at once to run, and he was barred of all right to maintain any action on the covenant after the expiration of 15 years. It seems to- us this, view ■of the matter can not be maintained. The covenant to keep in repair and renew ,when necessary is a continuing contract, not affected by" the statute of' limitations until after the covenantor refuses, to repair or renew, as the case may be. Appellant had a right to submit to. the substitution of a wooden wall for the stone; and while the former was, perhaps, neither as ornamental or durable as the latter, still, it served the purpose of retaining his lot in place, and prevented it from caving in and falling down. This acquiescence was much to the advantage of appellee it being enabled by this indulgent complaisance to escape the larger outlay involved in the building of
Nor does it follow, because, originally, appellee was permitted to erect a wooden retaining wall, that, when the necessity should arise to renew it under the covenant, it could do so by rebuilding a wooden wall. If it had originally built a stone wall of such quality as would need renewal now, certainly it would be required, under the covenant, to build a new stone wall, and we are able to perceive no reason, either in law or logic, whereby it can escape the obligation of its covenant to renew now with a stone wall. It received the benefit of being allowed to build the original retaining wall of wood. By this it saved money. Because appellant was indulgent to it then, does not deprive him of the benefit of his covenant now. He is entitled to all of the covenant except that which- he has waived, to wit, the substitution of a wooden fence for the original stone wall. Undoubtedly, during the existence of the original wooden wall, appellant having permitted it to be built, could not arbitrarily require the corporation to pull it down and erect a new stone wall, because this would be allowing him to mislead it to its hurt; but if, by its own- wrongful act, it has pulled down and removed the wooden wall, or this has from old age become decayed and useless, so as make a new wall necessary in order to comply with the original covenant, then appellant is entitled to that which is “nominated in the bond. ’ ’
Appellant had a right to, accept the wooden wall as
We think there is no doubt of appellant’s right to have his contract specifically enforced. In Pomeroy’s Equity Jurisprudence, section 1404, the rule is thus stated: “Where, however, the contract is in writing, is certain in its terms, is for a valuable consideration, is fair and just in all its provisions, and is capable of being enforced without hardship to either party, it is as much a matter of course for a court of equity to decree, its specific performance, as for a court of law to award a judgment of damages for its breach. This is the ordinary language of judges and text-writers.” See, also, L. & N. R. R. Co. v. Zaring, 9 Ky. Law Rep., 107; Schmidt v. L. & N. R. R. Co., 41
For these reasons the judgment is reversed, for proceedings consistent herewith.