Ward v. Vance

A. agreed with B., the owner of a hotel, to furnish the same with water by and through the same pipes then used for said purpose, B. afterwards leased the hotel to C., and covenanted that the house should he supplied with spring water in the same manner as then supplied under the agreement with A. B. was to keep certain pipes in repair and C. others, and B. was to see that the covenants made by A. should be kept. In a suit by G. against B. for breach of covenant, the court instructed the jury that B. was bound to supply water, whether the spring from which it was drawn kept up or not. Held, that this was error; that although the water of the spring had always been the source of supply of the house, yet if it failed from drought or other natural cause, it was no breach of any covenant express or implied for its supply.

Error to the Court of Common Pleas of Bradford county: Of January Term 1879, No. 186. Debt by J. C. Vance against John O. Ward, to recover for hauling water to supply a hotel properly leased by Ward to Vance, in consequence of the failure of said Ward to supply said hotel according to an agreement contained in the lease under which Vance held the premises. At the trial it appeared that, on January 19th 1866, C. L. Ward and John O. Ward entered into an agreement whereby the former was “ to furnish and supply the Ward House, in Towanda borough (owned by John O. Ward), with spring water, so long as the said John O. Ward, his heirs or assigns, may desire to have the same furnished and supplied, said water to he conveyed and supplied ■with the same, and by and through the same pipes and faucets •which are now used for the same purpose, or by and through other pipes and faucets of the same dimensions.” Under this agreement John O. Ward agreed to keep in repair the pipes and faucets on his own premises, and O. L. Ward agreed to keep in repair the remainder. On July 6th 1871, a lease of the Ward House by John O. Ward was made to Koon & Means, and was subsequently, in July 1874, assigned to J. O. Vance, the plaintiff. This lease provided, “ That said Ward House is to be supplied with spring water during said term, in the manner the same is now supplied under that certain agreement,” between C. L. Ward and John O. Ward above mentioned, * * * “and said Ward is to be to all the expense of keeping the pipes, &c., in repair.” * * * “ Koon & Means to keep the inside pipes in repair, and Ward the others ;” * * * and Ward “is to see that the covenants made by C. L. Ward in his agreement” * * * “ are kept by the heirs of C. L. Ward.” Vance took possession May 11th 1874, some little time previous to the formal assignment of the lease. The spring from which the' water was conveyed, as mentioned in the agreement between O. L. Ward and John O. Ward, was a half or three-quarters of a mile out of town, and had been the only regular source of supply of water to the house since the same was built. The claim of Vance for an insufficient supply of water arose in part from the fact that he had put water-closets in the house to the number of five, and had connected them with the water-pipes. Erom Vance’s own testimony it appeared that shortly after he took possession of the premises his guests began to complain about the insufficient supply of water ; that the reservoir fed by the spring was cleaned out; that it was quite a dry time, and the reservoir did not again fill, and he was compelled to haul water continually; that a good portion of the summer of 1874 he had to haul water. In the general charge the court, Morrow, P. J., inter alia, said : “ You are to ascertain how much of the water was necessary to run the house independently of these closets, and whatever it actually cost Mr. Vance for hauling and supplying the house with water, we think Mr. Ward is bound to pay under his agreement, providing you find that the water which was being supplied to the house in the summer of 1871 was sufficient to supply the house all through this time, and that, too, we think, whether the spring kept up or not, because Mr. Ward agreed to supply the house with spring water under that certain agreement between John O. Ward and O. L. Ward, dated January 19th 1866.” Verdict for plaintiff for $533; and after judgment thereon defendant took this writ, and alleged that the court erred in the above portion of the charge.