McIntosh v. Lown

By the Court, Welles, J. The defendants’ covenant in the lease, “ to keep the buildings and fences in good repair, except natural wear and tear ” bound them to rebuild in case of accidental destruction by fire or otherwise. (Comyn’s Land, and Ten. 185. 3 Black. Com. by Chitty, 229 mar. paging, note. 3 Kent’s Com. 467, 468 marg. pag. Chitty on Cont. 7th Am. ed. 735. Woodall’s Land, and Ten. 326. Warner v. Hitchins, 5 Barb. 666. Beach v. Crain, 2 Comst. 86-93. Bullock v. Dommitt, 6 T. R. 650. Proprietors of Brecknock and Abergaveny Can. Nav. Co. v. Pritch [555] ard et al, Id. 751.) And numerous other authorities which might be cited. Some authorities hold that where the covenant by the lessee is to repair and leave the premises in the same state as he found or received them, or language to that effect, he is merely required to use his best,endeavors to keep them in the same tenantable repair, and is not bound, by such a covenant, to restore buildings destroyed, by fire or otherwise, during the term, without his fault. This is in consequence of- a construction given to the covenant, that the lessee- is so to repair or keep in repair the buildings, &c. as to leave the demised premises in the same state as he received them-; and such I think is the settled law. But where the covenant is to repair or keep in repair generally, the buildings, &c. without the qualifying words mentioned, all the authorities hold "that it requires the tenant to rebuild, &c. in case of the accidental destruction of the buildings, &c. The action before the .justice, and judgment therein, constitute no legal bar to the plaintiff’s recovery in this action. The lease was for five years, and contained seven distinct independent covenants on the part of the lessees, as follows : 1st. To pay rent, &c. 2d. To pay all taxes, except taxes for building a new "school house. 3d. To keep the buildings and fences in repair, &c. 4th. To draw and spread manure, &c. 5th. To seed down at least fifteen acres per annum, &c. 6th. Not to sow over ten acres, of winter grain the last year of the term. 7th. To build, during the continuance of the lease, one hundred and twenty-five rods of post and board fence, four boards high. The action before the justice was upon the last of the above covenants, for not building the one hundred and twenty-five rods of fence, which was a distinct and independent covenant from-the one to keep the buildings in repair, upon which this action is brought, and had no connection with it, except that it was contained in and evidenced by the same instrument. Each covenant, if broken, gave a [556] cause of action. At common law, a single count in the declaration upon breaches of both of these covenants, in an action of covenant, would, in my opinion, have been demur-able for duplicity. In order to recover upon them both, in one action, the plaintiff would have been bound to set forth the two causes of action in separate counts. It is preposterous to say that the cause of action, in the suit before the justice, was identical with that for which this action was brought. The most that can be said, is, that one action might have been sustained, both for not building the one hundred and twenty-five rods of fence and for not 'keeping the buildings in repair. In Phillips v. Berick, (16 John. 140,) Chief Justice Spencer, in delivering the opinion of the court, remarks : “ There is no case or dictum which requires the party to join in one suit, several and distinct causes of action. It is true, the court may, to prevent vexation and cost, consolidate under some circumstances, several suits brought and pending at the same time. It is in the election of the plaintiff, if he has distinct causes of action, to sue upon all or any of them when he pleases ; and he has the further election to unite in one suit, under certain restrictions; not necessary to be stated, several causes of action ; but the defendant cannot compel him to do this.” The doctrine on this subject is fully discussed and illustrated by the same learned jurist, in the case referred to, and the rule there laid down is unquestionably the true one. The former action must have been to recover for the same identical cause of action, or for some part thereof, as the plaintiff seeks to recover in the present action, in order to be a bar. It is undoubtedly true that where the demands are so blended as to be incapable of subdivision, a recovery in a former action for a part, would bar an action for the residue ; but this is not a case of that description. The.covenant to keep the buildings in repair, and that to build the one hundred and twenty-five rods of fence, are as entirely distinct as if they were contained in separate written contracts; and if so, the case is within the spirit [557] and good sense of the rule allowing separate actions to he maintained. [Monroe General Term, March 4, 1867. I am aware of several adjudged cases where the language of the court seems to favor the idea, that where a party having a demand against another consisting of several distinct and unconnected items which might be embraced in one action, and all due at the same time, brings "an action for one or more of such items, and either succeeds or is defeated upon the merits, he cannot afterwards maintain another action for the residue of such items not included in the first action, and that, without any agreement the legal effect of which would make the demand inseparable. Of this character are the cases of Guernsey v. Carver, (8 Wend. 492;) Stevens v. Lochwood, (13 id. 644;) Colvin v. Corwin, 15 id. 557,) and Bindernagle v. Cocks, (19 id. 207.) Some of these cases were probably decided correctly upon the facts, but all of them, I believe, are chargeable with the vice of approving, by their language, the legal heresy herein imputed to them. The true question in all such cases is, not whether the rule allowing separate actions to be maintained for separate items, would lead to a multiplicity of suits or would operate oppressively, but it is whether the former action was for the identical cause or demand as that for which the subsequent one is brought. In the latter case, where the demands in both constitute one entire, inseparable cause of action, the plaintiff is not at liberty to separate them so as to maintain separate actions for different portions of such entire demand. The foregoing views, I think, are sustained by the late case in the Court of Appeals, of Secor v. Sturgis, (16 N. Y. Rep. 548,) and also by the case of Badger v. Titcomb, (15 Pick. 409.) For the foregoing reasons I think the judgment should be reversed, and a new' trial ordered, with costs to abide the event. Ordered accordingly. Welles, E. Darwin Smith and Johnson, Justices.]