Clifton v. Montague

• Decision Date: 27 March 1895
• Citation: 21 S.E. 858,40 W.Va. 207
• Parties: CLIFTON v. MONTAGUE.
• Court: West Virginia Supreme Court

21 S.E. 858

40 W.Va. 207

CLIFTON v. MONTAGUE.

Supreme Court of Appeals of West Virginia.

March 27, 1895

Submitted January 12, 1895

Syllabus by the Court.

1. Where a party in a written lease describes the property as "the premises known as the 'Bedford Salt Furnace Property,' together with all the appurtenances thereto belonging, including six salt wells, tools and fixtures of the same," there is no implied covenant on the part of the lessor that there are on said premises six salt wells of any particular productive capacity, or suitable for the purposes for which they are leased.

2. The recitals contained in said lease as to the number of salt wells included in the premises after the lease has been accepted and acted on for more than two years by the lessee with ample opportunity of knowing, not only the contents of the lease, but the character and quality of the property leased, must be regarded as conclusive of the fact between the parties to said lease.

3. The words "including six salt wells," contained in said lease, create no implied warranty that there were six salt wells on said premises of any particular quality or fitness for manufacturing salt.

4. Where a written lease of property provides that the lessee shall keep the same in repair except as to unavoidable accidents and natural wear and tear, the law will not imply a contract on the part of the lessor to repair damages caused by unavoidable accidents.

Error to circuit court, Mason county.

Action by George Clifton against T. G. Montague. Judgment for defendant, and plaintiff brings error. Affirmed.

Malcolm Jackson, Tomlinson & Wiley, and C. E. Hogg, for plaintiff in error.

John U Myers, for defendant in error.

ENGLISH J.

This was an action of covenant brought in the circuit court of Mason county by George Clifton against T. G. Montague. The action was predicated upon a lease executed by said T. G Montague to said George Clifton and W. H. Cavan, dated August 23, 1890, whereby, in consideration of the rents and covenants therein contained, the said T. G Montague leased unto said Clifton and Cavan, for the period of three years from that date, the premises known as the "Bedford Salt Furnace Property," together with all the appurtenances thereto belonging, including six salt wells, tools and fixtures of the same, and the buildings of the party of the first part located thereon, situated in and near the village of Clifton, Mason county, W. Va., with the right to mine coal in the manner therein prescribed, to run said furnace, etc., upon the considerations and limitations therein set forth. The plaintiff, in his declaration, averred that the defendant by said lease, for himself, impliedly and by operation of law, did covenant with the said George Clifton and W. H. Cavan that said premises and property included six salt wells as in the said deed specified, suitable for pumping brine therefrom and supplying the same to said furnace in the manufacture of salt on said premises, and that the defendant had not performed, fulfilled, and kept the covenants contained in said deed according to the tenor and effect, true intent, and meaning thereof, in this: That there were not six salt wells on said premises, as called for in said deed, suitable and proper for pumping brine therefrom and supplying brine to said furnace for the manufacture and sale of salt, but that there were only five salt wells on said premises suitable for pumping brine therefrom and supplying brine to said furnace in the manufacture and sale of salt. On the 10th day of February, 1893, the defendant craved oyer of the lease, and demurred to the plaintiff's declaration, which demurrer was overruled, and thereupon the defendant pleaded covenants performed and covenants not broken, and issue was thereon joined. On the 8th day of May, 1893, the plaintiff was allowed to amend his declaration at bar by inserting an additional count, in which count the breach was alleged as follows: "And plaintiff avers that, after said lease had been made and entered into as aforesaid, the said defendant, through his agent and employés, continued to work on said well in the act of putting it in proper order and repair for some time thereafter, but said defendant failed and refused to finish the work of repairing said well; and by the negligence of his (defendant's) agents and employés, while said repairs were in progress, said well was rendered wholly worthless and made incapable of use by said lessees, Clifton and Cavan, and said well was practically destroyed, leaving in effect but five salt wells on said premises; and by reason of said negligence of the said defendant, through his agent and employés, in working on said well as aforesaid, said well was so much injured and impaired as not to be practically susceptible of being put in proper and suitable condition for use in connection with salt furnaces. And plaintiff avers that the defendant, in thus holding out to Clifton and Cavan before said lease was executed his purpose and intention of repairing said sixth well, whereby said lessees were induced to enter into said lease, after the execution to abandon as aforesaid the repairs of said well, and by defendants' own acts, as aforesaid, to render said well wholly worthless, was and is a gross fraud thereby practiced upon said lessees." On the 16th day of May, 1893, the demurrer to the declaration as amended was sustained, and the plaintiff filed a second amended declaration by adding two new counts thereto, in the first of which counts the plaintiff averred that "the said defendant, since the making of said deed, hitherto had not performed, fulfilled, and kept the covenants in said deed contained on his part to be performed, fulfilled, and kept according to the tenor and effect, true intent, and meaning of said deed, in this, to wit: That there were not six salt wells on said premises, as called for in said deed, but that there were only five salt wells on said premises, and not six, as stipulated in said deed of lease. And plaintiff further averred that, in consequence of there being but five salt wells on said premises, the said George Clifton and W. H. Cavan were forced and compelled to provide another salt well at their own cost and expense, and at great delay and loss of time, and they were thereby greatly hindered and injured in the business of the manufacture and sale of salt on the said premises described and leased in and by said deed, of all of which the said defendant afterwards, to wit, on the 1st day of December, 1892, and long prior thereto, had notice." In the second count the plaintiff avers, as a breach of covenant, "that the said defendant, since the making of the deed aforesaid, hitherto has not performed, fulfilled, and kept the covenants in said deed contained on his part to be performed, fulfilled, and kept according to the tenor and effect, true intent, and meaning of said deed, in this, to wit: That the said defendant failed and neglected to deliver unto the said plaintiff and said W. H. Cavan the six salt wells in said deed of lease stipulated for, and only delivered unto them five salt wells, instead of the six wells called for in said lease, and that in consequence of the failure and neglect of the said defendant to deliver unto the said plaintiff and said W. H. Cavan the six salt wells stipulated for in said deed of lease, and by reason of his delivery of only five salt wells unto said plaintiff and said Cavan, the said George Clifton and W. H. Cavan were forced and compelled to provide another salt well at their own cost and expense, and at great delay and loss of time, and they were thereby greatly hindered and injured in the business of the manufacture and sale of salt on the said premises described in and by said deed, of all of which the said defendant afterwards had notice." At the September term, 1893, the defendant craved oyer of the writing obligatory sued on in this action, and demurred to the plaintiff's declaration as amended, and to each count thereof, in which the plaintiff joined, which demurrer was sustained by the court as to counts Nos. 1 and 2, and overruled as to counts Nos. 3 and 4, being the last two counts added, by way of amendment, to said declaration; and the defendant pleaded covenants performed and covenants not broken, and issue was joined thereon. The case was submitted to a jury, and after the plaintiff had introduced all of his witnesses, and examined them before the jury, and rested his case, the defendant, by his attorney, moved the court to exclude from the jury all the evidence introduced by the plaintiff, which motion was sustained by the court; and the plaintiff, by his counsel, excepted, and asked that the evidence so excluded be certified by the court and made part of the record, which was accordingly done; and the jury found a verdict for the defendant, and thereupon the plaintiff moved the court to set aside the verdict and award him a new trial, because said verdict was contrary to the law and the evidence, which motion the court overruled. The plaintiff excepted. Judgment was rendered for the defendant, and this writ of error was obtained.

The first error assigned and relied upon by the plaintiff in error is as to the action of the circuit court in sustaining the demurrer to the plaintiff's declaration and first amended declaration; and, in considering the questions raised by this assignment of error, we turn to the rules prescribed by the elementary works in regard to the action of covenant as a remedy, and we find in Chitty's Pleading (16th Ed. vol. 1, p. 129) the author says: "The rules respecting this action are few and simple. It is a remedy provided by law for the recovery of damages for the breach of a covenant or contract...