53 W. Va. 87 | W. Va. | 1903
Josie M. Hurxthal, brought an action of covenant against St. Lawrence Boom and Manufacturing Company in the circuit court of Greenbrier County and received a verdict and judgment for $4,000, and the company sued out this writ of error.
Ben Hurxthal owned a flour and grist mill on Greenbrier river, which was supplied with water by a race fed by a dam in the river near the head of the race. The said company owned a saw mill which was also fed by said mill race at a point some distance .ab ve the Hurxthal mill. The said company had booms in the river above the mill race for catching logs. The logs sawed on the companj^s saw mill were floated down the river to the head of the mill race and then down the mill rece to a point a little above the saw mill, at which point the logs left the mill race and were floated to the mill on a lateral channel leading from the mill race to the- river. Hear the point where this channel entered the river the channel was divided into two parts by 'an island, and across the two mouths of this channel, which channel is called a log pond, there were two small dams erected to prevent the water which flowed into the mill race at its head from going into the river through the log pond, not only to keep the pond from being too shallow, but also to-keep it from being. lost from the grist mill further on. down.
A question going to the very root of the case, because involving the very right of the plaintiff to sue upon the agreement on which her suit is based, arises upon the plaintiff’s first instruction saying, that if she, before 13th June, 1899, gave the company written notice that she elected to extend the agreement of 13th June, 1894, for five years after 13th June, 1899, then the plaintiff had succeeded to the rights of Ben Hurxthal under that agreement. This involves the question whether the covenants in said agreement binding the company to maintain the dams as therein provided, and not to suffer or permit the accumulation of trash in the mill-race, are covenants real running with the grist mill property and enuring to the benefit of the plaintiff as its owner derivately from Ben Hurxthal, and thus entitling her to sue for an infraction of that agrément; or are mere personal covenants binding the company only as such, and not authorizing the plaintiff, as successor in ownership of the grist mill, to sue for the infraction of the agreement. "A covenant is said to run with the land when either the liability to perform it or the right to enforce it passes to the assignee of the land.” 8 Am. & Eng. Ency. Law 134. When the company made those covenants it passed no' estate in the mill property to Iiurxthal. The company and he were strangers in estate. To create a covenant real there must be a privity in estate between the parties — otherwise it is simply a personal obligation, neither binding nor benefit-ting the land in the hands of heirs, devisees or assigns. Lydick v. Railroad, 17 W. Va. 427; Trans. Co. v. Pipeline Co. 23 Id. 631; 2 Minor 715. “It is not sufficient that the covenant is concerning land, but to make it run with the land there must be á privity of estate between the parties, and the-covenant must have relation to an interest created or conveyed, in order that the covenant may pass to the grantee of the cov-enantee.” 8 Am. & Eng. Ency. L. 147. “A covenant does not run with the land unless contained in a grant thereof, or of
Another question arising in the case comes from the claim of the company that the matter in controversy in this suit was p.djudicated finally, and the plaintiff barred by reason of the decree in the suit of the administratrix mentioned above brought to convene the creditors of Ben Hurxthal’3 estate. The bill, brought before the court for adjudication the question whether the company had a valid debt against the estate. Though the bill presented this matter very indeffinitely, yet it presented it and made the company the defendant, and it could not have presented it for any other purpose than for adjudication. I apprehend that a bill of that character need not specify the debts against the estate with particularity which would be called for in suits of a different character, the suit in question being only one to bring the assets of a decedent before the court for adjudication, and the creditors and their debts come in before the commissioners without pleading or formal issue. Section 7 of chapter 86, Code, makes such a suit the vehicle of relief to all creditors whether parties or not, or whether their debts are specified or not in the bill. The section provides that evidence respecting the claim of any creditor may be taken just as if such creditor were made a formal party and his rights set up in the bill. The refference to a commissioner enables that cred
It is contended that the declaration seeks damages including time during HurxthaFs life; but I -construe it as claiming damages only accruing during the . plaintiff’s ownership. I do not think there was any call for a new assignment of damages during plaintiff’s ownership. The declaration is limited to the plaintiff’s ownership. I therefore think that the defendant’s instructions 4 and 5 saying that said adjudication precluded the plaintiff from any recovery are bad. That adjudication only applies to Ben Hurxthal’s lifetime. It was a contest between his estate and the company. I think that defendant’s instruction 6 is bad. It declares that the decree would preclude recovery, unless the evidence showed that there was some failure of the defendant to keep the covenant which did not exist when the evidence was taken in the chancery case, but which occurred afterwards. The objection to this instruction is that it goes back only as far as the taking of evidence, instead of the date of Hurxthal’s death. If there was a breach after his death which entailed damage on the plaintiff after she became owner, she could sue. Defendant’s instruction 8 is good, except that it fixes the date of the commissioner’s report as the date up to which the decree operates as res judicmta, instead of the date of Hurxthal’s death.
The plaintiff has given instruction 2 saying that if the plaintiff succeeded to the'-rights of Ben Hurxthal under the agreement, and that the dam in Greenbrier river was not high enough to give a seven foot head of water as provided in the contract, and that it was not substantially complied with to furnish such head of water, then there was a total breach of the agree-
The court gave plaintiff her instruction 7 saying that if the plaintiff had negligently permitted gravel and mud to accumulate in the mill-race or had been guilty of any other negligence or act whereby the supply of water to her mill had been diminished, such negligence could only be considered in fixing the amount of damages and would not excuse the defendant from performing its agreement. This seems to be based on sound law. It is claimed that mud and gravel and mud were deposi
Defendant’s instruction 10 saying that the decree in the chancery cause shows that the height of the dam was in controversy therein is good under the principles above stated upon that subject.
Defendant’s instruction 12 is not good so far as it says that .the contract is based on the assumption that the dams existed at its date at the lower end of the log pond then furnished the head-of water required by it; but the instruction is good in saying “if the jury believes the said, dams then furnished sufficient water, and if tide said defendant has maintained said dams to the same height they were on June 13, 1894, and has kept the trash and rubbish from the bridge and trestle across said race, so as not to obstruct the flow of water, and use due dil-ligence in repairing said dams when necessary, they must find
Defendant’s instruction 13 declares the adjudication in the chancery suit extends to the final decree in May, 1899, after the mandate of the Supreme Court reached the circuit court. I do not think the instruction good. I think that decree, for. the purposes of this case, relates to the date of the death of Húrxthal. I shall say nothing upon the subject of excessiveness of damages in view of a new 'trial, further- than to say that they wein assessed on an improper basis and made greatly too large because they cover the whole time from the plaintiff’s purchase’ down to 13th June, 1904. As to what damages the plaintiff suffered, if any, we do not say, nor whether the defendant is guilty of a breach of the contract. These matters are .left for the new trial. ' It is very certain that in an action for a breach of contract the measure is more strictly confined than in cases of tort, the primary and immediate result of the breach are aloné to be looked to. In Wood’s Mayne on Damages, p. 14, section 12. Punitive damages are confined to toits, and even then damages' must be compensatory only as’ a general rule. Talbott v. W. Va. Cent. & P. R. Co., 42 W. Va. 560; Bodkin v. Arnold, 48 Id. 108. Damages must not go beyond fair compensation for actual loss sustained. They cannot be punitive in action on contracts. 3 Parsons on Contracts 179, (169); 8 Am. & Eng. Ency. L. 632, compensation for actual loss is the test, the standard of damages in actions on contract. 1 Sutherland on Dam. sections 12, 75. Damages for breach of contract in excess of actual compensation are unwarranted and a ground for-new trial. Rowland & Co. v. Ross, 40 S. E. 922; Dougless v. Railroad, 51 W. Va. 523. Neither in tort nor contract do damages go beyond such as are the reasonable and probable consequences of the act complained of, except in some oases of tort. Peters v. Johnson, 50 W. Va. 644.
' Reversed.
The plaintiff cross-complains that the Court erred in allowing the record in the chancery suit, including depositions of witnesses, to go in evidence; but as shown above it was admissible.
The evidence of John'Briscoll, a share holder in the defend
I do not think under principles above stated that defendant’s instruction given by the court is objectionable. It declared that the record in the chancery case shows that the height of the dam was in controversy, and was the matter inissue between the estate of Hurxthal and the company. ■ ■ ■
The plaintiff c.omplains of the action of the Court in admitting as evidence minutes of the defendant company in 1881, to show Ben Hurxthal’s connection with the company at that time, and that the stockholders of the company claim under Ben Hurxthal, and to show his acquaintance with the business and properties of the company. The minutes being in his handwriting. Hurxthal had parted with all interest in the company before' the dam was built and before the agreement, and I do not see that this evidence is -relevant to 'the case or relates to it with sufficient closeness to authorize its admission.
We therefore reverse the judgment, set aside the verdict and I grant a new trial, and remand the case.