57 Vt. 205 | Vt. | 1884
The opinion of the court was delivered by
January 1, 1855, the orator purchased and took a deed of the Trotter House property, in Bradford, from Ellis Bliss, for the expressed consideration of $6,750. He paid Bliss that amount. Bliss had for a number of years been keeping a hotel on premises adjoining the Trotter House property, known as the Bliss hotel property. He had purchased the Trotter House property the March previous for about $3,600, and laid out about $400 in making repairs. As an inducement to the orator to purchase the Trotter House property and pay the price asked, he agreed to close and keep forever closed his own hotel property, for hotel, boarding-house, and
“Yet the condition of this deed is such, that if I, the said Ellis Bliss, my heirs, executors, administrators, and assigns do and shall hereafter keep and hold the above premises free and clear from all the purposes of a hotel, tavern, inn, or boarding-house; also, from all the purposes of livery or livery stabling, as well the buildings that now are erected thereon, as any and all which shall hereafter be erected thereon, so long as wood grows and water runs, truly and faithfully as to the said Harry B. Stevens, his heirs, executors, administrators, and assigns, then and in that case, this deed is to be null and void, otherwise in full force and effect.”
From the evidence, which does not much conflict, we find that the orator paid §2,500 for this last conveyance, though the consideration named in the deed is §4,000; and the Bliss hotel property was then worth $3,000 or more. Bliss ob-served the condition during the time he owned the property, but within a few years sold it in parcels, which, at the time of bringing this bill, were owned by the several defendants. It had been built upon, so that, it is agreed, it was then worth $12,000. The bill was served May 23, 1872. The orator, in the bill, sets forth the two purchases and conveyances from Bliss, and alleges that there have been breaches of the condition by several of the subsequent grantees or their tenants, and prays that the land and premises be declared forfeited to the orator, and for an accounting for the rents and profits; and “for such other and further relief in the premises as the nature and circumstances of the case
The inhibition, upon the use of the Bliss hotel property for hotel and livery purposes, was not necessary to the reasonable enjoyment of the Trotter House property for such purposes. It was not necessarily, nor visibly connected with the use of the latter for such purposes. It might make them more valuable, but not more so than it would any other premises properly fitted up and suitably located in the village of Bradford. The inhibition was not peculiar, nor necessary to the use of the Trotter House property for such purposes. Although Bliss owned both premises at the time he conveyed the Trotter House property to the orator, it would not be seriously contended that that conveyance carried with it an inhibition upon the use of the Bliss hotel property for hotel and livery purposes. If it were a privilege or appurtenance of the Trotter House property, it would pass with it upon a conveyance thereof.
II. The defendants also contend that, admitting the breaches of the condition, the orator can only recover such damages as he can show that he h'as personally sustained in the business of hotel and livery-stable keeping by reason thereof. By the deed the orator and Bliss made a breach of the condition of the deed, the contingency upon which the grant was to take effect. It is hardly correct to say that a breach of the condition worked a forfeiture of the Bliss hotel property. Bliss for himself, his heirs, executors, administrators, and assigns, by the deed solemnly contracted with the orator, his heirs, &c., that upon a breach of the condition the orator’s right to the described premises should become absolute. For this grant to become absolute upon the happening of the contingency named in the condition, the orator paid a large consideration. It would effectuate the intention of neither party to the deed, to hold that the orator could only recover such damages as he could show that he had suffered by breaches of the condition. It would in effect be making a contract for the parties thereto, rather than enforcing the one they have made. It is a case where the parties to the contract have by a solemn instrument declared what the effect of a breach thereof shall be. They have for themselves determined what the orator, his heirs, &c., shall recover for such breaches. They have thereby liquidated the damages for such breaches. While it is true,
It has rarely been held that, in a contract by which a party has' agreed to refrain from exercising a particular trade or profession within a named locality, and agreed upon the sum to be paid if he breaks his agreement, that the sum thus agreed upon has been held other than liquidated damages. In addition to the authorities last cited, see also, Barry v. Harris, 49 Vt. 392; Butler v. Burleson, 16 Vt. 176; Dakin v. Williams, 17 Wend. 447; cases cited in note 3, sec. 170, Wood Mayne Dam.; Williams v. Dakin, 22 Wend. 201; Leary v. Laflin, 101 Mass. 334; Pierce v. Fuller,
One of the principal reasons for so holding is, that there is no definite measure for the damages occasioned by the breach of such a contract, and they are very difficult of proof. The case at bar well illustrates the difficulty. There was another hotel in Bradford besides the Trotter House. How could the orator prove that the parties boarded by Kennedy, or fed at Beard’s eating saloon, would have been patrons of the Trotter House except for such boarding or such feeding? and if they would have been such patrons, how much would have been the profits ? They might have patronized the other hotel or another boarding-house. While it is thus difficult to prove the actual damages sustained by the breaches shown, all the evidence is to the effect that two equally well kept and commodious hotels on the two properties would render both properties valueless as hotels. The profits to be derived from the custom obtainable by each would no more than pay running expenses, while if all the custom is given to one of them the profits are fairly remunerative. Neither is it reasonable to hold that the orator would pay Bliss $2,500 for his agreement to hold the Bliss hotel property free from such uses, under an agreement expi*essed or implied, that he was to keep watch for breaches of the agreement, and that an action arose for the recovery of a shilling’s profit, for every meal of victuals Bliss thereafter sold to a traveller on the inhibited premises. Besides such holding and such construction would in effect nullify the deed of the Bliss hotel property. If the orator had not purchased the Tr'otter House property, and had not in it, nor in any other premises in Bradford, gone into the hotel business, he might lawfully have entered into the contract with Bliss, that he did, in regard to the use to which the Bliss hotel property should thereafter be put, and in regard to the results that should follow the breach of the contract. He might have had various reasons for desir
III. But since making'tlie deed the Bliss hotel property has been divided by various conveyances, and has by some of the grantees been greatly improved by the erection of valuable buildings; and several of these grantees have carefully kept and used the premises owned and occupied by them free from the inhibited uses. The orator, too, has sold the Trotter House property, and gone out of the hotel business. Under these circumstances, inasmuch as the orator has come into a court of equity, thereby offering to do equity, we think it would be inequitable not to relieve the owners of those portions of the Bliss hotel property, who are innocent of any breach of the condition of the deed, from an entire loss of the improvements and enhanced value of the property. But, the damages being liquidated between the parties to that deed, only one recovery can be had for a breach of the conditions of the deed. Hence the orator should be, at least, made whole in relieving the defendants from a full enforcement of the deed. We think the orator will be made whole by the payment of the sum he paid for the deed — $2,500—and interest since he demanded the premises at the time he brought this bill. Although the first breaches were of a much earlier date, and continued to the time of the demand., they were of -such a nature that they could be waived, or not insisted upon by the orator. We treat his failure to make a demand earlier an election by him not to insist earlier upon an enforcement of his rights under the deed. Generally in such a case the sum in equity to be recovered to compensate for the non-