Grubb v. Burford

• Decision Date: 20 September 1900
• Citation: 37 S.E. 4,98 Va. 553
• Parties: GRUBB. v. BURFORD.
• Court: Virginia Supreme Court

98 Va. 553

37 S.E. 4

GRUBB.

v.BURFORD.

Supreme Court of Appeals of Virginia.

Sept. 20, 1900.

PLEADING—JOINDER OF ACTIONS—DEMURRER —LEASE—EVIDENCE.

1. Under Acts 1897-98, p. 103, providing that in any case where an action of covenant will lie an action of assumpsit may be maintained, common counts in assumpsit may be joined with a special count for the breach of an agreement under seal.

2. Where a common count in a declaration is good, a demurrer to the entire declaration will be overruled.

3. Where an action is brought for the violation of a covenant in a lease provided for its renewal which was conditioned on the performance of the terms of the lease, the lessee must allege a performance of such conditions, or a valid excuse for nonperformance.

4. Where there is no ambiguity in a written instrument, it is error to admit parol evidence of the construction placed thereon by the parties.

5. Where the plaintiff had introduced evidence that a certain lease had been modified by a parol agreement, which was denied by the defendant, it was error to refuse to admit a later lease between the parties, which provided that it should not conflict or interfere with the lease sued on, to rebut such evidence.

6. In an action for breach of a covenant to renew a lease, evidence of the future profits to be made from the property if a certain price can be obtained for the product thereof is inadmissible on the question of damages.

Appeal from circuit court, Botetourt county.

Action by one Grubb against one Burford for damages for a failure to renew a lease. From a judgment in favor of the plaintiff, the defendant appeals. Reversed.

Cocke & Glasgow, for appellant.

Benj.Haden, for defendant.

BUCHANAN, J. The first assignment of error is to the action of the court in overruling the demurrer to the declaration, and to each count thereof.

The ground of demurrer to the whole declaration is that there is a misjoinder of counts. All the counts are common counts in assumpsit, except the last, which is a special count upon or for the breach of an agreement under seal. There is no doubt that at common law those counts could not be united in one declaration, and that such misjoinder would be fatal on general demurrer. But by act of assembly approved January 25, 1898 (Acts 1897-98, p. 103), It is provided "that in any case where an action of covenant will lie there may be maintained an action of assumpsit." Under that act assumpsit could be maintained upon the writing sued on In the special count, as it is clear that an action of covenant would lie upon it.

Since an action of assumpsit will lie upon the cause of action in the last count, as well as upon the several causes of actions in the other counts, we see no reason why they may not be properly united in one action of assumpsit, as was done in this case. See Parsons v. Harper, 1G Grat. 64; Womack v. Circle, 29 Grat. 192; 4 Minor, Inst. 446, 447.

The common counts in the declaration being admittedly good, the demurrer to the declaration as a whole was properly overruled.

This brings us to the consideration of the demurrer to the last count. By the agreement set out in that count, the plaintiff (defendant in error) had leased from the defend ants certain iron-ore lands and other property for the period of one year, with the fight to renew the lease for a further term upon certain conditions. One of the grounds of objection to that count is that by it the plaintiff sought to recover damages because he had been ejected from, and deprived of the use of, the leased premises for the second term, after he had elected to renew the lease, without averring that he had performed the conditions upon which he was entitled to renew it. The stipulation In the agreement for the renewal of the lease is as follows:

"Provided, that the said lessee, having performed all his covenants in this agreement contained, may, at his option, renew this lease and continue this letting on the terms and conditions herein set forth for a further term of four years."

The lessee's right to a second term by the express terms of the agreement is made dependent upon his performance of all the things he had covenanted to do during the first term, and he cannot recover damages upon that agreement for the defendant's refusal to renew and continue the lease for the second term unless he avers and proves performance on his part at the time and In the manner stipulated, or gives some valid excuse for his nonperformance. Carroll Co. v. Collier, 22 Grat. 302, 308; Insurauce Co. v. Rutherford, 95 Va. 773, 30 S. E. 383, and authorities cited.

The plaintiff, among other things, covenanted that he would move at least 12, 000 tons of ore annually, and as much more as he could obtain satisfactory sale for; that he would mine the premises in a skillful, workmanlike manner, so as to do no injury to them, taking the ore as it came, coarse and fine together; and that he would diligently and in a workmanlike manner search for ore not theretofore discovered.

The material averments of the performance of these and his other covenants are as follows:

"And the plaintiff further avers that he went to great expense to get out ore from the said mines; he paid In advance large sums of money in opening up new mines on the said lands; he expended large sums of money in preparing to mine the ores as the said contract of lease required in getting together large forces of men for the work, in purchasing mining tools and implements for the said work in opening up new cuts or mineholes; and as a further inducement to get the plaintiff to proceed with the work under the said lease the said defendants afterwards promised and agreed with the plaintiff that the ten months which were required for preparing the mines for work should not be counted as a part of the time set forth in the said lease, and that all the money paid out by the plaintiff in repairing the railroad on the said land, and in repairing the mines, and in opening up new mines on the said land should and would be returned to the plaintiff by the defendants."

"And the plaintiff avers that, relying upon the said promise of the defendants, he proceeded to repair the defendants' railroad and the defendants' mines, and to open up new mines on the defendants' lands, and to put the mines in good condition to mine ore profitably, and that he expended in said works a large sum of money, to wit, the sum of $5,531.90, of which the defendants had notice."

"And the plaintiff further avers that after he had expended the aforesaid money in...