Clagett v. Easterday

• Decision Date: 11 June 1875
• Citation: 42 Md. 617
• Parties: THOMAS CLAGETT v. JAMES O. EASTERDAY, JOHN EASTERDAY and GAMALIEL EASTERDAY.
• Court: Maryland Court of Appeals

42 Md. 617

THOMAS CLAGETT v. JAMES O. EASTERDAY, JOHN EASTERDAY and GAMALIEL EASTERDAY.

Court of Appeals of Maryland

June 11, 1875

APPEAL from the Circuit Court for Frederick County.

Action of covenant to recover damages for the breach of a covenant to convey certain lands to the plaintiffs. The appellant entered into a contract, under seal, to convey to the appellees, a certain tract of land, situated in Frederick County, containing 68 1/2 acres of land--that being one-half of a tract of land, containing 137 acres. The appellees paid down one-third of the purchase money, and were to give a mortgage for the rest. The appellees entered into possession but refused to give the mortgage on a proffer of a deed alleging that the land proposed to be conveyed to them by the appellant, was not the part of the tract which they had purchased. Thereupon the appellant filed a bill in equity for specific performance. The decree of the Court sustained the appellees' view of the proper location of the land, and ordered the appellant to convey it to the appellees, and the appellees to pay the purchase money for the same, (the time for the credits to be secured by the mortgage having elapsed.) The appellees thereafter brought this action, and offered evidence tending to show that they had originally purchased the land of one Warrenfeltz, an agent of the appellant; that they had purchased it for the benefit of a mill-site on it, which the said agent had pointed out to them; and that the appellant was aware, that this was the object of the purchase. The mill-site was situated on a portion of the land which the appellant had not offered to convey to the appellees, but which the Equity Court had decided to be a part of the property purchased by the appellees. Other facts are given in the opinion of the Court.

At the trial, fifteen exceptions were taken to the rulings of the Court, and the appellant offered twenty-five prayers, some of which were granted and some rejected. The Court, (LYNCH, J.,) instructed the jury, in addition to the prayers granted.

[It is not deemed necessary to set out the exceptions prayers and instruction at length, as the substance of them is sufficiently, for the understanding of the points decided, explained in the opinion of the Court.-- REP.]

The cause was argued before BARTOL, C.J., STEWART, GRASON and ALVEY, J.

Chas. W. Ross and James McSherry, for the appellant.

It was absolutely necessary that the jury should be re-sworn on the new issues, after the amendment. The case of the Balt. Fire Ins. Co. vs. McGowan, 16 Md., 47, was an action brought by the appellees in covenant against the appellant upon a policy of insurance. Plea non in fregit.

After the evidence was closed, the plaintiffs asked leave to amend the writ and the narr. from covenant to assumpsit, and the Court granted the leave, and the amendment was made. After the amendment was made, the jury were again sworn. And the Court, Chief Justice LEGRAND delivering the opinion, recognized this fact as being proper practice under the circumstances, but assigns no reasons.

The same point was raised in the case of Garrett vs Dickerson, 19 Md., 449. And the Court there held, that these provisions are clear and intelligible, and authorize amendments which do not change the substance of the issues. And also held, "that the amendments did not change the issues joined." See also Adams Express Co. vs. Trego, 35 Md., 61.

It seems clear from the above decisions, that when amendments are made during the progress of the trial, and the issues are materially changed, it is necessary that the jury should be re-sworn.

Here the issues are materially changed from assumpsit to covenant, and come precisely within the practice recognized and approved in the case of Balto. Fire Ins. Co. vs. McGowan, 16 Md., 47; See Gould's Pleading, 215, secs. 89, 90; Stephens' Plead., 83; Irvin vs. Jones, 1 How., (Miss.,) 497.

If the plaintiffs desired to amend their pleading, they had the right under the Code to do so, and before they could do so the original pleading should have been withdrawn by leave of the Court for amendment. When the narr. is withdrawn so are the pleas and the issue joined thereon. Barstow vs. Randall, 5 Hill, 556.

Then, when the new narr. and the pleas and replication thereto were filed and issue joined thereon, unless the jury were sworn to try the issues joined thereon, it was a mistrial and the verdict of the jury was a nullity, because the jury was not sworn till after issue joined. 3 Black. Com., 357, 365.

The demurrer to the plaintiffs' declaration should not have been overruled.

No evidence of special damage is permitted to be given unless specially averred in the declaration. Carroll vs. McTavish, 13 Md., 429, and 17 Md., 1; 1 Chitty's Plead., 388; 1 Step. on Plead., 165; Middlekauf vs. Smith, 1 Md., 329; Abbott vs. Gatch, 13 Md., 332; Cooke vs. England, 27 Md., 14.

The ruling of the Court admitting in evidence the proceedings and decree, of the equity case to show, 1st, what land the plaintiffs were entitled to under the agreement. 2nd, that the defendant had failed to convey the land to which the plaintiffs were entitled. 3rd, what part thereof he had failed to convey.

The evidence being offered for these special purposes, if not admissible for such purposes, it must be rejected, though admissible if offered generally. McTavish vs. Carroll, 13 Md., 429.

The evidence as to the plaintiffs' object in purchasing the land was inadmissible under the allegations of the narr. and should have been rejected or stricken out. If the plaintiffs' object in purchasing this land was in any event material to be known by the jury in this action, it could only be inquired into for one purpose, and then only provided it was fully and distinctly known to the defendant at the time the contract was made, and was connected with the alleged breach of the covenant.

The testimony was offered for the purpose of enabling the plaintiffs to recover for the alleged breach of contract, damages which were not the natural and proximate result of the alleged breach. Hadley vs. Baxendale, 9 Exch., 341; U.S. Telegraph Co. vs. Gildersleve, 29 Md., 249.

The evidence offered to prove, as a measure of damages, the rental value of such a saw-mill as might have been built on this alleged mill-site was inadmissible. The damages, when special, must be particularly specified in the declaration. McTavish vs. Carroll, 13 Md., 429. The damages alleged and those proved must not be variant. Ortwine vs. Mayor, &c., Balto., 16 Md., 387; Parker vs. City of Lowell, 11 Gray, 353; Adams vs. Barry, 10 Gray, 361; 1 Chitty's Pl, 371.

The appellees were entitled to the rental value, if at all, for such time only as they were deprived of the possession of the mill-site; and the evidence should have been confined to that period. Middlekauff vs. Smith, 1 Md., 338.

Further. The testimony was not admissible because the damages proved by it were remote, contingent, speculative and not contemplated by the parties as the consequence of a breach of the contract at the time it was made.

The rental value allowed in Abbott vs Gatch, 13 Md., 314, was of an actual, real and tangible building--not, as in this case, of an imaginary structure. And so in Middlekauff vs. Smith, 1 Md., 338.

Had there been a saw-mill on this property at the time of its purchase by the plaintiffs, then this case would parhaps have been analagous to Abbott and Gatch. It is difficult to perceive what are remote, contingent or speculative damages, if those claimed in this case for the rental value of an imaginary saw-mill are not of that character. U.S. Telegraph Co. vs. Gildersleve, 29 Md., 249.

The prayers excluding these damages should for these reasons have been granted, and the instruction of the Court should therefore not have been given.

This is not a total breach of the covenant. A great part of the land which the plaintiffs claimed under the agreement was taken possession of by them; and all of which they were deprived, according to their own statements, were five and a half acres. The true measure of damages is therefore stated in the prayers. Morris vs. Phelps, 5 Johns., 52; Hopkins vs. Lee, 6 Wheat., 109, 118.

George K. Shellman and J. E. R. Wood, for the appellees.

Even if the cause of action in the amended narr. had been materially different, under the provisions of the Code relating to amendments, the plaintiffs could have made such an amendment, and it was not necessary to re-swear the jury. Code, Article 75, secs 23, 24, 32; Adams Express Co. vs. Trego, 35 Md., 59. In this case, the defendant did not ask for or desire a continuance.

The demurrer of the defendant was properly overruled. The narr. sets out the defendant's agreement to convey the whole of a certain tract of land, describing it, and the breach is sufficiently laid in alleging that he refused to convey a part of said land. As he was bound by his contract, as he admits, to convey all of said land, the failure to convey any part thereof, without just cause, was a plain breach of his contract, of which he must of necessity be aware, and it is immaterial as to the breach what particular part it was.

In reply to the appellant's objection to the offer of the record in the equity case between the parties, we submit that in that case, there had been an adjudication on all the points upon which the record was offered in evidence. See Broom on Common Law, (L. L.,) 271.

A decree in chancery operates as an estoppel equally with a judgment at law. Butler's N. P., 153; Groshon vs. Thomas, 20 Md., 234; Cecil vs. Cecil, 19 Md., 72; Beall vs. Pearre, 12 Md., 550.

The matters for which the equity record was offered were res adjudicata; and we...