Clagett v. Easterday

Grason, J., delivered the opinion of the Court. By a written agreement under seal, dated 10th October, 1867, and executed by the appellant and appellees, the former agreed to convey to the latter, upon the terms — 625 — therein specified, a certain parcel of land, which is particularly described in the agreement. The appellees brought an action of assumpsit against the appellant to recover for an alleged failure upon his part to convey or deliver possession of five and one-half acres, part of the land agreed to he sold, on which it was alleged there was a mill-site. After the jury had been sworn and the trial proceeded with, the appellees asked leave to amend the writ and narr., "by changing the form of action from assumpsit to covenant. The appellant objected to the amendment without a juror was first withdrawn, hut the leave was granted and the amendment made without a juror being withdrawn, and the appellant excepted. The appellant then demurred to the amended narr., and the demurrer was sustained. Another amended narr. was filed to which there was also a demurrer, which was overruled by the Court. Pleas were then filed and issues joined, and during the progress of the trial thirteen exceptions were taken to the rulings of the Court in admitting evidence to which the appellant had objected. Another exception was also taken by the appellant to the rejection of his first, second, third, fourth, fifth, eighth, tenth, twelfth, thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, nineteenth, twentieth, twenty-second, twenty-third and twenty-fourth prayers, and to the instruction given to the jury by the Court. A verdict was rendered in favor of the appellees, and the appellant filed a motion in arrest of judgment, assigning two reasons: first, because the amendment of the writ and narr. was made without withdrawing a juror, and, second, because the jury was not re-sworn upon the issues framed after the amendment was made. The motion in arrest was overruled and judgment entered on the verdict, and from the judgment so entered this appeal is taken. It was contended that the narr was defective in not having described with particularity what part of the land agreed to be conveyed, was withheld by — 626 — the appellant. He was bound to convey all the land, which by his agreement he had covenanted to convey, and a failure to convey any part of it was a breach of his covenant. Tt was not, therefore, necessary in the assignment of the breach of the covenant, to describe by courses and distances, metes and bounds, what particular part of the land had been withheld from the appellees, but an averment that the appellant had refused to deliver possession of, or to convey the land agreed to be conveyed, was sufficient. The breach may be assigned in the negative of the covenant generally, or according to its legal effect. 1 Ohitt. Plead., 120. The demurrer was therefore properly overruled. The first exception and the motion in arrest of judgment present the same questions, and will be considered together. Article 75, sec. 23 of the Oode, authorizes amendments to be made in the pleadings at any time before the jury retire to make up their verdict, and writs to be amended from one form of action to another. Section 24 provides that “ no continuance shall be granted upon amendments of the plots, writs, or any of the proceedings, but the case shall proceed as if no amendment had been made, unless the Court shall be satisfied that the ends of justice require a continuance.” Section 32 provides that “where an amendment is qllowed after the jury is sworn, and the Court shall consider a continuance necessary to a fair trial of the cause, a juror shall be withdrawn ; hut if the Court considers that a continuance is not necessary to a fair administration of justice, the jury may proceed and try the case after the amendment.-’ ’ This section directs a juror to be withdrawn after the pleadings are amended, only in such cases as the Court may consider a fair administration of justice requires a continuance. “Whether a continuance should have been ordered, after the amendment of the appellee’s declaration was matter of discretion, which is exclusively oonfided to the Court in which the amendment takes place.” Adams — 627 — Express Company vs. Trego, 35 Md., 59. But if the question were properly before us for review, we should have to say that in this case the discretion vested in the Court below has been judiciously exercised, and that there is no error in the rulings of that Court in the first exception and on the motion in arrest of judgment. The second exception was taken to the ruling of the Circuit Court in admitting in evidence the record of the Chancery suit in the Circuit Court for Frederick County, in which the present appellant was complainant and the appellees were defendants. One of the matters involved in that suit was the correct location of the lines of the parcel of land which the appellant had covenanted to convey to the appellees, and the decree in that case, not having been appealed from, finally and conclusively settled that question as between these parties. The decree in that case determined that the five and a half acres, the failure to convey which to the appellees, is the foundation of the suit now before us, were included within the lines and formed part of the sixty-eight and a half acres which the appellant was bound by his covenant to convey to the appellees. The parties to that suit and this being the same, and the subject-matter of the suit the same, the decree in that case was admissible as evidence in this. Cecil vs. Cecil, 19 Md., 79; Beall vs. Pearre, Admr., 12 Md., 565. What is the correct rule for the measurement of the damages, in the event of the verdict being for the appellees, is the main question in the case, and is raised by several of the exceptions to the evidence, as well as by many of the prayers of the appellant. It is perfectly clear that no recovery could be had of the yearly rental or profits of the mill which never had an existence. There was no mill erected on the land, which was withheld by the appellant from the appellees, and, even admitting that the principal inducement to the purchase of the land was the existence of a mill-site thereon, and that the appellees purchased with — 628 — the intention of erecting a saw-mill thereon, yet, even if the whole of the land had been conveyed to the appellees, it is uncertain whether a mill would have been built, or, if built, that it would have obtained any custom or yielded any rents or profits to its owners. Such a claim is contingent, uncertain, remote, and altogether speculative. And this being so, the knowledge on the part of the appellant that the principal inducement to the appellees to purchase the property was the existence of the saw mill-site upon it, and that it was their intention to erect a saw-mill thereon, could not affect his liability by either lessening or increasing the damage. Where a party fails to perform his contract to convey land, the true measure of damages is the value of the land at the time of the breach of the covenant. Cannell vs. McLean, 6 H. & J., 302; Marshall vs. Haney, 9 Gill, 260; Same case, 4 Md., 508; Crisfield vs. Storr, 36 Md., 150. In this case proof was offered tending to show that the appellant, some time after the sale of the land to the appellees, repurchased from Warrenfeltz, to whom he had conveyed them, the five and a half acres, and offered to convey them to the appellees,' who refused to accept the conveyance and to execute a mortgage to the appellant in pursuance of their agreement, unless he would pay them one thousand dollars. If it be true that the appellant offered to convey and the appellees refused to accept the conveyance, (the purchase money not having been paid,) the appellees could only recover the fair annual rental value of the five and a half acres, in the condition they then were, dxxring the time the possession was withheld from them by the appellant. The fact that this parcel, which was withheld by the appellant, had a mill-site upon it, may have added to its yeaxdy rental value, and therefore evidence of the. existence of a mill-site thereon was admissible. But evidence of the yearly rental value of a mill suitable for such a site was cleaidy inadmissible, and the fact that the'appellant knew that the mill-site on the — 629 — land furnished the principal inducement to the appellees to make the purchase, or that he knew it was their intention to erect a mill thereon, was perfectly immaterial, and therefore inadmissible. It follows, therefore, that the evidence objected to, and admitted in the third, fourth, sixth, seventh, ninth, twelfth, thirteenth and fourteenth exceptions was inadmissible, and ought to have been rejected. The evidence in chief of James O. Easterday, as contained in the third exception, being held inadmissible, it becomes unnecessary to notice th'e fifth exception. In the eighth exception, John Easter-day proved that there was a mill-site on the property, withheld by the appellant from the appellees, but that he was not an expert on the subject of determining the existence of a mill-site, whereupon the appellant moved the Court to exclude from the. jury, the evidence of said Easterday, in regard to there being a mill-site on said land, but the Court refused to exclude such evidence and the appellant excepted. A party may testify to the existence of a mill-site without being an expert, and the ruling of the Court in refusing to exclude the evidence referred to was correct. The evidence of Ziegler in regard to the mill-site was moved to be stricken out, because he swore that the fall of the stream between the dotted line and the red line on the plat “ J. 0 E.” was but two feet, seven inches, and because said fall did not constitute a mill-site. Although the fall between said lines may have been only two feet seven inches, the fall from the outline of the appellees’ land to Z. the mill-site was proved to be over seven feet and the Court very properly refused to exclude the evidence of Ziegler from the jury, and the ruling in the tenth exception was therefore correct. For the same reason, the ruling of the Court in the eleventh exception was correct. The fifteenth exception was taken to the rejection of certain prayers offered by the appellant, and to the instruction granted by the Court. From Avhat Ave have before said — 630 — in regard to the measure of damages, it will appear that the true rule was laid down in the third, fourth, fifth, fourteenth and twentieth prayers, which were rejected, and should have been granted ; and in the sixth and seventh which were granted. The first, second and nineteenth prayers were properly rejected for the same reason, that the Court refused to exclude the evidence in the tenth and eleventh exceptions. The conclusion of the eighth prayer that the rental of such mill as might or could have been built on the mill-site, could not be received was perfectly correct, but that conclusion was to be drawn from facts stated in the prayer, and to be found by the jury, which we have stated to be perfectly immaterial, and should not have been submitted to the jury. The decree in chancery determined what land the appellant was bound to convey to the appellees, and if he withheld any part thereof from them, it was a breach of his covenant, and the.appellees were entitled to recover for the time during which the possession of any part thereof was 'withheld from them, nor were the appellees obliged to rescind the contract. The tenth, twelfth, fifteenth, sixteenth, twenty-second and twenty-third prayers were therefore properly rejected. The thirteenth prayer was properly rejected, for though the conclusion of it is correct, it is made to depend in part upon the knowledge on the part of the appellant, that the mill-site on the land was the inducement to, the appellees to purchase, which we have shown was perfectly immaterial. This prayer was therefore properly rejected. The twenty-fourth prayer relates to the measure of damages, and as we have before stated what is the correct measure of damages, by which the jury is to be governed, it becomes unnecessary to say more of this prayer, than that it authorizes the jury to allow damages for the land withheld, from the date of the contract to the time of the sale under the decree, while we have shown that damages are only to be recovered from the date of the — 631 — contract, to the time when the appellant offered to convey the five and a half acres to the appellees, if the jury shall find such offer. We think, therefore, that there was no error in rejecting this prayer. (Decided 11th June, 1875.) The instruction granted by tlie Court, was clearly erroneous, because it authorized the jury, among other things, to allow as damages, the rental value of such a saw-mill, as was suitable and proper for such mill-site. We have shown that such damages are contingent and speculative, and are not to be allowed. The seventeenth prayer is not in the record, and was not referred to by the counsel in their arguments or briefs, and we must presume that it was correctly rejected. As there was error in the rulings of the Circuit Court in the particulars to which we have referred, the judgment appealed from will be reversed and the cause remanded for a new trial. Judgment reversed, and new trial awarded.