Cooke v. England

Weisel, J.,

delivered'the opinion of this Court.

The action in this case was brought in covenant on the 30th September, 1863, by the appellee, plaintiff below. The declaration averred that the defendant- covenanted with the plaintiff to rent to him, the plaintiff, for a certain annual rent, a mill and premises in Carroll county, and that he, the defendant, would, at his expense, keep said mill in the necessary repairs. The breach assigned was that-the defendant did not keep the said mill in the necessary repairs, at his, the defendant’s expense, according to said stipulation, and that he did not perform his said-covenant.

The defendant pleaded four pleas: 1st, that he was not indebted as alleged; 2d, that he never promised as alleged; 3d, that he was always ready to make repairs to the mill when thereto requested by the plaintiff, and that the plaintiff never notified him that such repairs Avere needed, and never requested him to make such repairs as alleged in the declaration; and 4th, that the plaintiff hindered and prevented the defendant from making repairs on the mill.

Issues Avere taken on the pleas, and on the trial of them a verdict Avas rendered for the plaintiff.

In the course of the trial several exceptions Avere taken to the admissibility of proof. The first Avas by the defendant to the admissibility of the lease itself under the *27 pleadings in tlie cause. The lease was offered by the plaintiff, and was found to be under the seals of the parties ; but the Court overruled the objection and allowed the paper to be offered in evidence. The point of the exception was that as the lease was under the seals of the parties, it could not be offered in evidence under a declaration which simply averred that the defendant had covenanted, without adding under seal; that the word covenant does not per se import that the instrument declared on was sealed ; that word being frequently used in contracts not under seal; and that the rule of pleading is imperative that where a sealed instrument is the cause of action the declaration must aver it to be under seal, or use some word that legally imports a seal; otherwise the variance is' fatal.

In Maryland, since the adoption of the Code, forms of action are again observed, and the declaration must so far correspond with the writ or summons as to show the party entitled to the action brought. Otherwise it would be liable to a demurrer. Under the Act of 1856, ch. 112, which abolished forms of action, this Court, on more than one occasion, could not disregard the substantial principles which underlie our system of jurisprudence, and to some extent govern the forms of action, though changed or simplified. Stirling et al. vs. Garitee, 18 Md. Rep., 475 .

The case before us was in covenant. The defendant did not demur, but pleaded to the declaration. The objection arose to the proof as not admissible under the nar. The contract offered was a sealed instrument. So far as the form of action was concerned, no objection could be taken to it. The want of a seal would present a more tenable ground of objection. But inasmuch as the declaration avers simply that the defendant covenanted with the plaintiff, without saying under seal, or using some technical word or phrase which in legal acceptation imports a seal, ‘the instrument offered, it is insisted, presents an *28 .instance of fatal variance, and should be excluded by the rules of evidence.

If a demurrer had been interposed the Coxirt would be called upon to say whether under our present simplified mode of pleading, the declaration could be maintained. The cases cited by the appellant, from New York and Arkansas, and supported by the English authorities, would sustain the demurrer, though the distinction stated by Judge G-ould in his treatise on Pleading, pp. 189,191, between averments on contracts valid at common law only by deed, and those which by statute are required to be in writing, ought in such a presentation of the question to be properly considered. But we are not called on now to decide, and do not decide this question. In this case, and under our mode of pleading, we think that the defect, if any, was waived by the pleading over. It is one of form at best. A covenant is by all the authorities a contract under seal, Miles vs. Sheward, 8 East., 8, Pratt on Gov., 3, and what fell from Lord Hardwick and Justice Lee in the case of Dodd vs. Atkinson, Hard. Cases, 342, is applicable to a case like this. This and other cases furnish to Mr. Platt in his treatise on Covenants (p. 6) the authority for his text in these words: “ So much does the word covenant imply a deed that there is no occasion to allege in a declaration that the deed containing the covenant was under the> defendant’s seal; the circumstance of sealing must be inferred, and even if it bo stated that the defendant covenanted, and the instrument declared on be not sufficiently shown to be a deed, the defect is cured by pleading over.”

We therefore think there was no error in the ruling of the Court below in allowing the contract to go before the jury on this ground.

The defendant then objected to the admissibility of the paper, because it had not been duly and legally stamped, and the stamp thereon cancelled, according to the provi *29 sions of the Acts of Congress. It was an agreement for a lease, and bore date the 28th day of February, 1863, with a certificate thereto in these words :

“$1.00 stamp. 1865, Nov. 14th, stamped and ean- “ celled, and penalty of fifty dollars paid me this day.

“ Frederick Schley, Collector.”

This certificate was dated, and the stamp and penalty paid on the day of the trial, and before it Avas offered in evidence. The Court overruled the objection and permitted the contract to be read. The defendant excepted.

The various Acts of Congress imposing duties for internal revenue, and applicable to this case, have been examined, and all provide for restoring the validity of the paper by affixing the stamp and cancelling the same before offered in evidence. The provisions in the several Acts authorizing this to be done in the presence of the Court, are not exclusive of the provisions elsewhere in said Acts for affixing the stamp at any other place or any other prior time, unless in cases arising under the Act hereinafter mentioned. The mere authority to stamp in the presence of the Court, under the former Acts, Ave do not construe as the only mode of restoring validity to the instrument. In this case the Act of Congress of 1865, ch. 18, was passed on the 3d of March, 1865, pending and before the trial, and by sec. 1, (p. 481, 482, 13 U. S. Statutes at Large,) the very mode adopted in this case of paying the stamp and penalty to the Collector, and having it affixed and so noted by him on the margin of the instrument, was legalised as the proper mode in all cases of previous omission, the said section declaring that “ such instrument shall thereupon be deemed and held to be as valid to all intents and purposes as if stamped when made or issued.” And if the paper should not fall under the curing provision of this Act, it does under the others, and having been stamped before trial was admissible.

*30 We therefore determine that the contract offered in evidence could not he excluded on this ground, and that the Court below did not err in admitting it: and that it was also right in rejecting the 5th, 6th and Lth prayers of the defendant in his 16th Exception, which were predicated on this objection.

This being an action for damages for a breach of a covenant for necessary repairs, we are to be governed by the law, as to what constitutes such repairs, as it was recognized and announced by this Court in the case of Middlekauff vs. Smith, 1 Md. Rep., 340 ; and passing by for the present the plaintiff’s first exception, we will proceed to examine and dispose of in their order the other exceptions of the defendant, bearing in mind the nature of the third and fourth plea, to which issues were taken, viz: that the defendant was not notified of repairs, and that he was hindered and prevented by the plaintiff from making them.

The plaintiff, proceeding in the trial, proved by several witnesses the condition of the bolting cloth, in September, 1863, also of the water wheel and elevators, and then proposed to prove by Joseph Lowe’, a miller, “that in the condition of the bolting cloth, as it was when he examined it, (September, 1863,) a new bolting cloth was a necessary repair.” The defendant objected, but the objection was overruled and the proof allowed. This constitutes his third exception. The order of proof is not to be observed. On the hypothesis that the defendant was notified or not prevented, the proof was admissible as showing a state for repairs after the beginning of the lease and during its continuance. If the bolting cloth was so defective and worn as not to admit of being mended by the miller as tenant, a new one became a .necessary repair. The covenantor was not bound to add improvements or make additions under his covenant to repair, but he was bound to renew existing machinery, when too old *31 and worn to answer its purpose in the mill. If, for instance, a strap gave way and the material was too rotten and decayed to he mended, a new one to take its place became necessary as a repair. To show that a new cloth was necessary, the judgment of the witness, as a miller, was admissible. This would be proper proof, in connection with other facts, under the issues. The Court committed no error in permittin g it to go in.

The fourth exception arose to the admission of proof and to the question which elicited it, by the same witness, as to the effect, in his judgment as an experienced miller, upon the quality and value per barrel of the flour manufactured in the mill during the lease whilst the bolting cloths were in the impaired and worn out condition' as described by him, and because of the want of necessary repairs to them. The witness examined the cloths at one point of time during the lease, and could only speak of the difference in value between flour manufactured then through them, and flour run through cloths in the condition in which they should bo, leaving it to the jury to apply his answer, upon the question of damages, to the state of facts arising in the case and to be proved by other witnesses. The question, as propounded, took too broad a scope, extending over the entire lease, and in this respect it was erroneous, and was properly objected to.

Solomon Gfartrell, a witness for the plaintiff, met with the defendant, Cooke, at his store, in September, 1863, when Eoutz and Groff had been examining the mill. Cooke asked him what they were doing at the mill. He told him they were examining it. The plaintiff's counsel then asked him, “ what did Cooke say in that conversation about the mill ?” The defendant objected to it and the proof as inadmissible to prove a demand by the plaintiff on the defendant to repair the mill, and his refusal, unless the plaintiff should show that he authorized the witness to hold the conversation or to demand of *32 him the making of repairs to the mill. The Court overruled the objection. Without proof of authority, the evidence sought would he no proof of demand to repair, and if offered for that purpose would be inadmissible. Rut as there was evidence of some notice having been read to Cooke, in the latter part of July, 1863, the plaintiff was entitled to the benefit of any declaration by Cooke touching it, or his refusal to repair ; and whether the witness was authorized or not to hold the conversation, the declarations of Cooke to him about the mill, if relating to its repairs, or his refusal to repair, could not properly have been excluded, when asked for by the plaintiff. The Court in admitting the proof did not err. This was the 5th exception.

We think the Court was also right in refusing the question and proof under the 6th exception. The competency of James England as a miller, and at the beginning of the lease, could not enlighten the jury on the question of damages, or the issues in the case.

The testimony ruled out under the Tth exception was offered in mitigation of damages. We do not see how an offer by another to relieve the plaintiff from six months of the lease at the same rent, with other favorable terms, could legitimately hear upon the question of damages. His contract was with the defendant, and that could not he affected by propositions from other quarters, to he accepted or not, from considerations that might have no relation to the controversy. We think the ruling of the Court in this exception was correct.

The 8th exception was abandoned in the argument.

We think the Court erred in refusing the testimony of Alonzo W. Cooke, in the 9th exception, as that testimony appears to us to relate to the same time and occasion, and was properly rebutting. It was for the jury, at all events, to determine, from a comparison of the time and other circumstances, whether the notice spoken of by the different witnesses was the same and the occasion the same.

*33 The 10th exception. Jacob Zumbrum, who had been tbe preceding tenant of the mill, and a miller, was asked “how long would the bolting cloths in use in said mill, when he left it and when the plaintiff took possession, have lasted and manufactured good flour, with proper care and attention on the part of the miller carrying on the mill ?” The question and the evidence offered were ruled out. If the necessity of repairs were produced hy the carelessness or unskilfulness of' the miller, that circumstance would go to mitigate the damages. No evidence of unskilfulness bad yet been offered, nor could such be fairly inferred from an opinion of an expert how long the bolting cloths might last with proper care. The question seems to have had a double aspect: that no repairs were needed, or, if needed, it was the fault of the miller ; and this prosjmctively and hy inference, from the opinion of a miller, who judged from the appearance of the cloths at the beginning of the lease. We think the jproof was properly excluded.

The testimony offered under the 14th exception is of the same character and liable to the same objection, and we think was properly ruled out.

By the proof in the 11th exception the defendant sought to show the condition of the wheat and flour elevators in the mill on or about the first of April, 1863, when the plaintiff went into possession. This we think it was competent for him to do. If the defendant were notified to repair, and these were subjects for repair, it was competent to show their condition at the commencement of the lease, in order to compare it with what may have been proved afterwards, either to show no repairs were necessary, or to what extent, and to govern in the damages. We think the Court erred in excluding this proof.

We concur with the Court in its rulings on the 12th and 13th exceptions. They looked to a condition of things anterior to the lease, which had no bearing upon tbe issues.

*34 We also think that the evidence offered in the 15th exception was inadmissible and for a like reason.

The 16th exception of the defendant is to the rejection of all the prayers offered by him, seventeen in number. The 5th, 6th, and 7th, have been disposed of already in considering the 2d exception.'

We consider that the 2d, 10th, 11th, and 17th prayers, embrace true legal propositions in the case, and ought to have been granted.

The 12th was properly rejected, because as we conceive there was no evidence in the cause of carelessness, negligence, unskilfulness, or other like default of the plaintiff, and the prayer is based on such a state of facts. Had there been proof of such in the case the prayer would be maintainable.

The 3d, 4th, 9th, 15th, and 16th prayers were properly rejected.

The 1st, 8th, 13th, and 14th prayers present the questions of the necessity of demand for, and a specification of repairs, and also of the proper measure of damages in a case like this. We have already passed upon the requisite of a previous demand, in disposing of the second prayer. It is one of the issues in the cause ; and we add here that Ave concur in this branch of the prayers. What is the proper measure of damages, or whether the jury, in assessing them, can embrace damages subsequent to the institution of the suit and to the date of the verdict, is a question that has produced much difficulty. The decisions upon it are collated and reviewed by Mr. Mayne in his Avork on the Law of Damages, more fully than elsewhere, and he states the result to be “that damages arising subsequent to action brought, or even to the date of the verdict, may be taken into consideration, where they are the natural and necessary result of the act complained of, and where they do not themselves constitute a new cause of action:” and “that general evidence of *35 matter accruing subsequent to the action may be used for the purpose of showing what was the natural and probable result of the defendant’s conduct; but that particular facts are not admissible, as a specific ground of damage, to be atoned for on their own account.” Mayne on Dams., 33, 35. Where the act complained of, or the breach assigned, is one and complete in itself, and the damages flow naturally and necessarily from it, the jury can include all to the date of the verdict. This principle would not apply to nuisances and continued trespasses upon land. The rule of damages is at all times difficult, and every case may present features which would vary the best defined rule upon the subject. In the case now before us, there was a lease for one year, the lessor covenanting to repair; suit was instituted against him during the lease and the trial took place after the term had expired. The breach assigned was a refusal to repair. All the consequences of this refusal could be considered by the jury, those subsequent as well as those prior to the institution of the suit, thus terminating the controversy arising from the breach of the covenant assigned in the declaration. See 2 Greenl. Ev., sec. 268, a. ; Shortridge vs. Lamplugh, 2 Ld. Raym., 802, 803 ; Hodson vs. Stallbrass, 9 Car. & P., 63 ; Ingram vs. Lawson, 9 Car. & P., 326. And as to what would be legitimate damages flowing from the act complained of and the mode of assessing them, this Court has heretofore expressed its conclusions. Middlekauf vs. Smith, 1 Md. Rep., 341 , &c. Certainty, as far as the nature of the case will admit of, is to be aimed at and ascertained. Therefore, merely speculative injuries, depending on remote, uncertain, or contingent events, afford no ground for damages.

With these views, the first, eighth, thirteenth, and fourteenth prayers of the defendant did not present the proper rule for damages in this case, and were properly rejected. And whilst in this respect the prayer of the *36 plaintiff was correct, it was faulty in the requisite of a demand and designation of repairs. This was one of the issues in the cause, which the jury was sworn to try and the prayer or instruction could not ignore it.

(Decided 18th April, 1867.)

The plaintiff’s first exception, in reference to the saw mill,'invoices a usage in the neighborhood in the construction of the lease. 'This was inadmissible. The lease, as to its subject matter and terms and provisions, must speak for itself. We affirm the ruling of the' Court on this exception.

The result is that the Court below erred in its rulings on the fourth, ninth, and eleventh exceptions, and in rejecting the second, tenth, eleventh, and seventeenth prayers in the sixteenth exception of the defendant. It also erred in granting the plaintiff’s prayer in the defendant’s seventeenth exception. The judgment must therefore be reversed and a procedendo awarded.

Judgment reversed and procedendo awarded.