Elting v. Clinton Mills Co.

Carpenter, J. On the 13th day of August, 1864, Amasa L. Hyde conveyed to the defendants, by deed poll, an easement in certain land owned by him. The deed contained this provision—“ And it is hereby understood and agreed that the said Elting Woolen Company” (the name of the defendants’ corporation at that time) “ shall remove the present river-wall some eight or ten feet easterly, on to a new line, as I, the said Amasa, may direct, and shall rebuild the same in a workmanlike manner the distance of one hundred and ninety-two feet, and shall also remove the earth lying between the old wall and the new wall, back behind the new wall, all at the sole cost and expense of the said corporation, their successors and assigns, and without any cost or expense to me, the said Amasa, my heirs and assigns forever.” On the 30th of November following, Hyde conveyed the [302] premises to Edmond J. Erazier, and on the first day of April, 1865, Frazier conveyed the same to the plaintiff. Neither of the last two deeds referred to contained any reference to the defendants’ easement in the premises, or their agreement in respect to the same. On the 3d day of November, 1865, Hyde gave specific directions to the defendants as to the manner of doing the work, and requested them to do it immediately. In this direction and request the plaintiff concurred. On the 4th day of August, 1866, Hyde executed and delivered to.the plaintiff a written assignment of all his interest in the agreement; and on the 18th of the same month, the plaintiff’s attorney notified the defendants to remove and rebuild the wall, on or before the 29th of the month. The wall has never been removed. This court is asked to advise the Superior Court what judgment to render upon these facts. That this provision in the defendants deed became, by force of their acceptance, a valid and binding contract on their part, is not denied. If, therefore, Hyde had remained the owner of the premises, and the action had been brought in his name, his right to recover would have been unquestionable. Townsend v. Ward, 27 Conn., 610 ; Hinsdale v. Humphrey, 15 Conn., 431; Newell v. Hill, 2 Met., 180. The question for our consideration seems to be this: Will the conveyance by Hyde of the property on which the work was to be done, operate to discharge the defendants from their obligations to perform the work? We think not. The change of ownership placed the defendants in no worse condition than they were in before. The labor contracted to be done was the same whether done for one man or another. They had no more reason to complain than a debtor where the debt has been assigned by the creditor. Indeed the same principle applies. Hyde, so long as he remained the owner, had a clear right to have the work done. We fail to discover sufficient evidence of an Intention on his part to abandon or waive that right. Two circumstances are relied upon as evidence of such an intention, neither of which, nor both combined, under the circumstances are sufficient. The first is, [303] that the deed is silent in respect to the removal of the wall. This, at best, is equivocal. Standing alone it may tend to prove a waiver, but not necessarily so. Eor it may be that it was forgotten ; or that Hyde supposed that the right to have the wall rebuilt was conveyed with the land. But be this as it may, all doubt as to his intention is effectually removed by his subsequent conduct in notifying the defendants to build the wall and assigning the claim to the plaintiff. The second is, that by the conveyance he deprived himself of the power, which he alone could exercise, to direct where or in what manner the work mentioned in the contract should be done. If this be so it is difficult to see how the defendants can take advantage of it. As between Hyde and the plaintiff, Hyde had no right, against the will of the plaintiff, to go on the premises and direct where or in what manner the work should be done; but as between the plaintiff and the defendants he had such right, especially if requested so to do by the plaintiff. If, therefore, the fact was so, that the plaintiff, the only party to be benefited by a performance of the contract, did not desire it, Hyde clearly had no power or occasion to go on the land for the purpose of directing its performance. But the plaintiff does desire it. This action is brought for that purpose. The plaintiff, with that object in view, took an assignment of the contract. For aught that appears he requested Hyde to point out where and how the work should be done; at least he authorized him to go on to the premises for that purpose. All this is consistent with a continued intention that the contract should be performed, and inconsistent with the idea of a waiver. But it is said that Hyde, by his deed to Frazier, deprived himself of all interest in the contract, and the right to exact its fulfillment, and that there was therefore nothing for the assignment to operate upon. If this contract is to be governed by the same rules as covenants running with the land, then Hyde parted with his interest in it, and the purchaser acquired it by force of the deed. In that case the assignment was inoperative ; but that does not help the defendants, inasmuch as the plaintiff had previously acquired the right. If [304] it was a personal contract not running with the land, then it was a chose in action resting in Hyde, and subject like other dioses in action to assignment; and we think this is so, notwithstanding the fact that he had parted with the land, and therefore had no occasion on his own account to enforce the contract. We dearly should not he justified in holding that the parties concerned have abrogated this contract, unless the evidence that they have done so is clear ánd conclusive. No such evidence appears in this case ; but on the contrary it is at least consistent with the finding to suppose that Hyde actually received a valuable consideration for the contract in the sale of the land. If so it would be manifestly unjust to deprive the plaintiff of a right thus acquired and paid for* In either event, therefore, the plaintiff’s title is complete; and under our statute authorizing the assignee and equitable owner of a chose in action to bring an action at law in his own name, we see no difficulty in sustaining the action. This view of the case renders it unnecessary for us to determine whether this contract runs with the land or otherwise, as in either case we are satisfied the plaintiff ought to recover, and we so advise the Superior Court. In this opinion the other judges concurred.