Beach v. Barons

By the Court, Welles, P. J. I. The first demurrer presented in the case, is by the plaintiff, to the defendant’s fourth plea; which plea is to the second breach assigned in the declaration. The defendant covenanted to sow and raise 40 acres of wheat each year, during the continuance of the lease, and to deliver one half, after the same was harvested, to Hungerford, — 312 — or his attorney, by the first of October, in each year, at one of the flouring mills in Bochester, to be designated by Hungerford, Hungerford conveyed the premises, and assigned the lease to the plaintiff, March 26th, 1845. The second breach avers, that in the fall of 1845, the defendant harvested, threshed and cleaned, a large quantity of wheat, raised on the demised premises, to wit, 600 bushels, and did not deliver the same to Hungerford, or his attorney, or to the plaintiff or his attorney, by the first of October of that year, at one of the flouring mills. &c. but sold and converted and disposed of the whole of said wheat, to his own use. The fourth plea is, that the defendant did not in the fall of the year 1845, raise the quantity of 600 bushels of wheat on said premises. The essence of the breach is, that the defendant sold and converted to his own use, the whole of the wheat harvested in the season of 1845. and neglected to deliver any part of it. I do not think the plea meets the breach. It merely puts in issue the quantity of wheat harvested in that year, which is immaterial as respects the breach to which the plea is an answer; and can only become material upon a question of damages. It admits, by not denying the fact, that some wheat was raised and harvested, which might have been 599 bushels, and the plea still be true. A charge that he raised and harvested, and converted to his own use, 600 bushels, is not answered by saying that although he did convert to his own use the 599 bushels, yet that was all he raised that year. But the defendant contends that the second breach is not well assigned, for several reasons. Those which merit notice are, that it exceeds the terms of the covenant, in claiming the whole 600 bushels of wheat; whereas the plaintiff could at most claim only one half; and that it is not alledged that a place was designated at which to deliver the wheat, or that the defendant was requested to deliver it. With respect to the first of these reasons, it is sufficient to say, that although the breach alledges the non-delivery of the whole 600 bushels, yet its point is, that the defendant sold and converted, and disposed of the whole. This is substantially an allegation of the conversion of the plaintiff’s part. And a plea denying that, or furnishing some — 313 — other legal answer, it seems to me, might have been easily drawn. If the breach was bad in point of form only, the defendant should have demurred specially, instead of pleading over. And second, if the defendant sold and converted, and disposed of the plaintiff’s share of the wheat, it was unnecessary for the plaintiff either to demand it or designate a place for its delivery. If the defendant had the right, under the contract, to deliver an equal quantity of other wheat, and was in fact ready and willing to deliver it, upon notice of a place where, according to the contract, the fact should have been pleaded. II. The next demurrer in order is by the plaintiff to the defendant’s fifth plea, which is also to the second breach assigned in the declaration. The covenant to which the second breach relates is not collateral; but annexed to and runs with the land. Upon the conveyance of-the premises and the assignment of the lease to the plaintiff, he can maintain his action for the sale and conversion of the wheat which was cut and harvested afterwards. Hungerford’s right to the growing crops passed by the deed and assignment of the lease to Ms grantee and assignee. The only fact set up in this plea is, that after the wheat was sowed on the said premises, to wit, on the 25th day of March, 1845, Hungerford assigned the lease to the plaintiff. The assignment of the lease and conveyance of the premises, had been averred in the declaration, and was necessary to entitle the plaintiff to recover. The reuetition of it in the plea is no answer to the breach assigned. III. The next demurrer is by the plaintiff to the defendant’s seventh plea; which is to the fourth breach assigned. The seventh plea I think is bad, for the reasons assigned as a cause of demurrer; to wit, that it does not deny that the defendant cut standing timber; but denies that he cut and carried it away. If he had cut the timber and had not carried it away, the covenant would have been broken, and still the plea would have been true. The breach covers both the cutting and carrying away. The plea denies but one, and is clearly insufficient. IV. The next demurrer is to the defendant’s ninth plea; which is to the whole declaration. The plea is, that the defend — 314 — ant has in all things well and truly kept, fulfilled and performed all and singular the covenants, agreements and conditions in the said lease, &c. This is manifestly bad, for the reasons stated as causes of demurrer; and does not require further notice. V. The remaining demurrer interposed by the plaintiff, is to the defendant’s twelfth plea; which is also to the whole declaration. The twelfth plea is also bad, for the causes of demurrer assigned; to wit, that it admits the sale and conversion of the plaintiff’s half of the wheat, and offers nothing in justification. If he had kept the wheat, he would not have been liable until the plaintiff had designated the mill, &c. After he had sold and disposed of it, it would ‘have been idle for the plaintiff to make the designation. It may be added, that this plea entirely fails to answer the first, third, fourth and fifth breaches. The breaches not answered, are to be deemed as admitted by the plea; which, being to the whole declaration, should contain matter which would be an answer to all the breaches assigned. The remaining demurrers are by the defendant, to the plaintiff’s replication to the defendant’s tenth and eleventh pleas. VI. The tenth plea is to the whole declaration; and is, that Hungerford sold and conveyed his interest in the demised premises and in the lease, to the plaintiff, to wit, on the 26th day of March, 1845; that the plaintiff, afterwards, to wit, on the day and year last aforesaid, sold and conveyed said premises, and his interest in the lease, to Sanford J. Smith; and that since then the plaintiff has not been interested in the subject matter of the lease. To this plea the plaintiff replies that the several breaches of the covenants of the defendant, alledged and set forth in the declaration, occurred after the conveyance of the said demised premises and the assignment of said lease to the plaintiff by Hungerford, and prior to the conveyance to Smith. Upon the demurrer to this replication the defendant’s counsel has made several points, as follows: 1. That the replication is no answer to the plea; for the reasons that if the covenants run with the land, the plaintiff has no action for their breach; and — 315 — if collateral, he cannot recover in his own name; and that the plea shows that he had passed his title and interest in all the covenants, and has none left. It is to he observed that the several breaches assigned in the declaration are in the nature of distinct counts: and a plea to the whole declaration must contain matter which will be a legal answer to all the breaches. If a replication to such plea is good, as it respects either of the breaches assigned, although it may not be a good answer to the plea, so far as the plea assumes to answer other breaches, the replication will nevertheless be upheld on demurrer. In the case supposed, the plea is to the whole action; and if the replication shows the action can he sustained, in respect to any breach which is well assigned, the plea as an answer to the whole declaration is destroyed. If, therefore, the replication under consideration fortifies and supports either one of the five breaches assigned in the declaration, as against the matter of the plea, it is good. It is the same thing in this respect as if the plea was to a single breach, and the replication was good to the plea as an answer to that one breach; and in testing the validity of the replication, the plaintiff has the right to select the breach to which he will apply the plea, provided that be necessary in order to sustain the replication. In this case, it cannot he denied that the covenant not to cut timber, upon which the fourth breach is assigned, is a covenant running with the land, whatever may he said in that respect of the other covenants upon which breaches are assigned. The right of the plaintiff to sustain an action for a breach of a covenant of that description, depends upon the question whether he was the lessor, or the assignee of the lessor, at the time the breach was committed. The lessor, or person standing in his place—the landlord at the time the covenant is broken—must bring the action. By the common law, no one else can sue, in Ms own name. The declaration in the present case states the fact of the assignment of the lease, and the conveyance of the premises by Hungerford, the original lessor, to the plaintiff, on the 26th day of March, 1845; and the fourth breach alledges that the timber was cut by the defendant after that assignment — 316 — and conveyance. The plea reiterates the fact of the assignment, &c. to the plaintiff; and states, further, that afterwards, and on the same day, the plaintiff sold and conveyed to Smith. Now if the cutting of the timber took place after the assignment by Hungerford to the plaintiff, and before the assignment by the latter to Smith, the plaintiff would be the individual to bring the action. Certainly no one else could. Hungerford could not, because he had parted with all interest in the lease and in the land; and Smith could not, because he had acquired none, at the time of the breach of the covenant in question. The replication sets up this important fact—and that was all that was necessary to be alledged—that the several breaches accrued between the conveyance and assignment by Hungerford to the plaintiff, and the conveyance and assignment by the latter to Smith; thus showing, that it was while he, the plaintiff, was the owner of the premises and lease, as grantee and assignee of Hungerford, that the breach occurred; and thus removing the obstacle interposed by the plea. 2. It is also contended that the replication is uncertain; in not showing the particular time when the plaintiff acquired his title, and in not stating the time when he conveyed and assigned to Smith. Neither of these statements was necessary in the replication. The former had been distinctly and particularly averred in the declaration, and the latter in the plea. All that was necessary for the replication to show, and all that it assumes to show, was that the breaches occurred between the two events. [Monroe General Term, September 5, 1850. Welles, Johnson and Selden, Justice.] VII. The remaining demurrer involves precisely the same questions as the last, and should be disposed of in the same manner. Judgment should be entered for the plaintiff on all the demurrers, with liberty to the defendant to amend his fourth, fifth, seventh, ninth and twelfth pleas, and to rejoin to the plaintiff’s replications to the tenth and eleventh pleas, on payment of costs. Judgment accordingly.