1 Md. 329 | Md. | 1851
delivered the opinion of the court.
We are prevented from considering many important and interesting questions, which might have been presented upon ■the evidence and pleadings in this cause, because they were not raised in the court below, as required by the act of 1825, chap. 117. Under that act, to authorise the Court of Appeals to review a judgment of the county court, it must appear by the hills of exceptions, that the point or question upon which •the reversal or affirmance of the judgment is sought, was .presented substantially to the county court, and that the decision was made tipon such point or question. In the case now before us, there were three exceptions taken to the ruling of the court below, and we shall proceed only to the consideration of the questions in their order, which arise out of •those exceptions.
The first question raised in the first bill of exceptions, was as to the admissibility of the evidence of Stam, which related to the want of repairs to the tail-race. The appellant, in her lease to the plaintiff, (appellee,) had covenanted “to keep the mill in good repairs,and under this general covenant, the appellee sought to make her answerable in damages for neglecting to keep the tail-race in good repair. If we were to confine ourselves strictly to the precise point raised, and the manner in which it is presented, we would clearly be obliged to pronounce the decision of the county court erroneous, but for a different reason than the one assigned for the decision. This court must consider what particular point or question the county court has decided, and determine accordingly, whether it is correct or erroneous; and not whether the reasons assigned by the counsel or court, on the record, authorises what has
In the language of the first exception, “the plaintiff offered to prove by Daniel Stam, that the tail-race to the mill was not kept in good order and repair, which lessened the power of said mill, and impaired its usefulness.” Nothing is said about the time when the mill-race was thus out of repair. It may have been conceded that the race was out of repair, but denied that it was out of repair during the time of the plaintiff’s lease, or during the time alleged in his declaration that he sustained injury, by reason of the omission to repair on the part of the defendant. For this reason, we think the testimony ought to have been rejected, while we might concede that the obligation to repair the race was embraced in the general covenant to keep the mill in good repairs, and that evidence might have been offered to show that those repairs were not made as alleged in the declaration.
The inference however is irresistible, that although no time is fixed by the witness in his testimony, as set out in the first exception, in regard to the want of repairs in the race, yet the testimony which formed the subject of this exception, and to which the mind of the court below was evidently directed, was the same which is fully set forth in the second exception. Though more explicit as to time, yet the witness still failed to bring the want of repairs complained of, within the time alleged in the declaration of the plaintiff, in which the defendant is charged with having suffered the mill and race to be in bad repairs. In order to make testimony legally admissible, it must correspond with the allegations contained in the declaration, and be confined to the issue. In the books a distinction is made between allegations of matter of substance, and allegations of matter of essential description. The former may be substantially proved; but the latter must be proved
While we are willing to concede, that the general covenant “to keep the mill in good repair,” would embrace the obligation to keep also the tail-race in repair, yet we are not willing by any such construction of the contract, to shift the legal and usual responsibilities which belong to the miller over to the landlord. By keeping the mill in repair, is not meant the ordinary attention and care which is usually required of millers in operating mills, and which indeed constitute a part of their trade; such as, for instance, cleaning and
The court, therefore, should have confined the testimony of the plaintiff to such repairs, as were clearly the duty of the landlord to have made, which we think has not been done in this case. For the reasons stated, we reverse the court below, on the first exception.
As respects the testimony of Samuel Middlekauff, embraced in the second exception, we are of opinion that the county court was right in rejecting it. While it is not in the power of any person, to force another to render him offices of friendship or service, yet if these offices are voluntarily or even gratuitously assumed, the party is bound to act in conformity with the terms of the undertaking, and faithfully to discharge the duties thus assumed. An agent of this kind is responsible to his principal for the consequences of his negligence. Coggs vs. Bernard, 2 Raym., 909. Walker vs. Smith, 1 Wash. C. C. Rep., 152.
Being thus the agent of the defendant, and liable to her for any damages which might result to her from a neglect of his duty, Middlekauff is, therefore, clearly interested in the result
In an action against the principal for damages, occasioned by the neglect of his agent, the latter is not a competent witness for the defendant, without a release; for he isa as a gene ral rule, liable to his employer, in a subsequent action, to refund the amount of damages which the latter may have paid; and though the record will not he evidence against the agent, to establish the fact of misconduct, yet it will always be admissible to show the amount of damages recovered against his employer. Hamilton vs. Cutts, 4 Mass., 349, Tyler vs. Ulmer, 12 Mass., 163. Miller vs. Falconer, 1 Camp., 251.
It must he admitted that the question arising upon the third exception, or upon the defendant’s prayer, is one which is attended with very considerable difficulty. To adopt any general rule in relation to the measure of damages, which would apply to, and govern every case which might arise, involving that question, is a matter almost of impossibility. The defendant, in her prayer, asks the court to limit the measure of damages, to the costs and expense to which the plaintiff would have been subjected, for the purpose of properly repairing the mill and race; the injury resulting from the neglect to make said repairs, being the ground of the plaintiff’s action. The court, we think, were right in refusing this prayer. To have granted it, would have had the effect of confining the plaintiff’s damages within limits too narrow. On the other hand, we think, that while the court properly rejected this prayer, it could, with propriety, nevertheless, have prescribed some limits beyond which the plaintiff should not go in the introduction of testimony to swell his damages, and should have adopted some rule as a guide to the jury in the amount of damages to he awarded in the case. The general rule of damages in cases like the one now before us, as laid down by Mr. W. W. Story, in his work on contracts, sec. 1022, is this: “The consequential injury, fairly and naturally resulting to the plaintiff from the breach, will be ground for additional compensation. E^ut merely speculative injuries, founded on un
It remains for the court to apply these general principles,
We do not however mean to intimate, that under all circumstances-the lessee in this case was first bound to repair at his own cost. Many repairs may have been needed which his peculiar situation or circumstances would not have permitted him to have made, and thus one of the very purposes he may have had in view in requiring from his landlord a covenant to repair, might have been defeated. In such a case it could not be said that the tenant permitted, “or could have avoided,” the injuries of which he complains, because it was not in his power to have prevented them.
Under this covenant, clearly, the tenant would be entitled to be remunerated for all expenditures of money, time and labor made in repairing the mill, also compensation for the loss of the use of the premises, whilst they were being placed in the condition in which the landlord should have kept them;
We think complete justice cannot be done without the cause being submitted to another jury. The plain inference is, that the jury who determined this case, were permitted to consider matters which ought not to have entered into their verdict, and have allowed damages under the evidence submitted to them, which exceed those which the law and justice of the case would warrant. We therefore reverse the judgment and remand the cause.
Judgment reversed and procedendo awarded,