56 Cal. 317 | Cal. | 1880
The plaintiff, being the owner of a tract of land in Marin County, granted to the defendant the right of way thereover for its railroad, the latter covenanting,.among other things, to build for the plaintiff a certain wagon-road in lieu of one destroyed by the railroad; and also to fence both sides of the way granted, with a good and substantial picket fence; and thereafter to maintain such fence.
Defendant failed to construct the road or build the fence, hence this action to recover for the breach of the covenant. In the Court below, the plaintiff was permitted to prove and recover the estimated cost of constructing the road and building the fence.
Was this the proper measure of damages ? is the question mainly argued for the appellant, and the only point made on its behalf that we deem it necessary to notice. It is said, that, inasmuch as the plaintiff has not built the road nor the fence, he has suffered no actual damage, and that, therefore, he is only entitled to recover nominal damages. ■ We do not think this position sound. As well might it be contended, that if A contracts to build a house for B, arid is paid for it,-and then fails
The defendant chose to stipulate for the payment of the con sideration in this way, and we cannot see why it is not as much bound to perform its agreement as if it had stipulated to pay in anything else. Suppose, for instance, it had agreed to deliver to plaintiff, as a part of the consideration for the right of way, a> thousand-dollar United State four-per-cent, bond, and then refused to keep the covenant. Would any one doubt that the plaintiff could maintain an action for its breach, and recover, as the measure of damage, the value of the bond? We see no difference in principle between the case supposed and the present one. Here the agreement was to build a certain road and a certain fence. Failing to build them, we think defendant should be made to pay what it would reasonably cost to construct them. These views will be found supported by the following authorities: Lawton v. Fitchburg R. R. Co. 8 Cush. 230; St. Louis, J. & C. R. R. Co. v. Lurton, 72 Ill. 118; L. C. & S. Railway Co. v. Wray, 52 Ind. 578.
It is said by counsel for appellant that the case of Beach v. Crain, 2 N. Y. 97, is the other way. Assuming that to be so, the case does not seem to harmonize with the much later one, in the same Court, of Chamberlain v. Parker, 45 N. Y. 572, 573. That was an action to recover damages for the breach of a covenant to put down an oil well. The plaintiffs there had conveyed to the defendant, by an instrument in writing, all of their interest in certain described premises, retaining only a right of entry on breach of condition subsequent. By the conveyance, the defendant became bound to sink a well on the premises, which agreement he failed to keep, and thereupon became liable; and the question was, What was the proper measure of damages in the case? The judge before whom the case was tried held that this was the amount it would cost to sink a well on the premises to the stipulated depth. The Court
The reasoning of the Court in Chamberlain v. Parker is certainly not in conflict with, but on the contrary also lends support to, the views we entertain.
Judgment and order affirmed.
McKiystry, J., and McKee, J., concurred.