Morse v. Maddox

• Decision Date: 31 March 1853
• Citation: 17 Mo. 569
• Parties: MORSE, Respondent, v. MADDOX, Appellant.
• Court: Missouri Supreme Court

17 Mo. 569

MORSE, Respondent,

v.MADDOX, Appellant.

Supreme Court of Missouri.

March Term, 1853.

1. A. leased to B. a farm, with “water privileges from the mill-pond for turning a wheel to drive a saddle-tree manufactory.” Held, A. was not bound to keep the mill-dam in repair, nor to keep sufficient water in it to drive the saddle-tree factory. He was only liable for some misfeasance in respect to the matter, and not for any nonfeasance.

Appeal from Jefferson Circuit Court.

This was an action brought by John H. Morse against Thomas H. Maddox, for an alleged violation of the following agreement:

“Article of agreement made and entered into between Thomas H. Maddox and John H. Morse, both of the county of Jefferson and state of Missouri, as follows: said Maddox grants, leases, and rents to said Morse, for and during the full term of five years from the tenth day of March, 1849, to the tenth day of March, 1854, the following described premises and privileges: First, said Morse is to have the use and occupation of the farm now under fence, and mansion house, including all the tenements and buildings, except such as hereinafter reserved; all the buildings east of the branch, below the mansion house, are excluded; also, water privilege by and through the saw-mill flume or fore-bay or out of the mill-pond in some way, for driving or turning a wheel to drive a saddletree manufactory; also, all the buildings and improvements that said Morse may erect, or cause to be erected, to be the property of said Maddox at the end of the time specified above. Said Morse is to pay the said Maddox annually, the sum of eighty dollars, payable every six months from this date. Said Morse to keep the farm in good order and not to use any timber except for fire wood and said timber to keep up the fences. Said Morse, with his wheel or water privilege, not to interfere with or impede the grist-mill in any way. Signed the within agreement the tenth day of March, 1849.

THOMAS H. MADDOX,

JOHN H. MORSE.”

On the trial, the plaintiff offered evidence to prove that the dam did not furnish the same head of water subsequent to the date of the contract that it did at the time the contract was made; that it got out of repair from the high water in the spring of 1850; that, at the date of the contract, there was a head of water of four feet eight inches, and that the river was flush at the time; that, subsequently, the high water washed off some of the top of the dam; that in the summer of 1850, the height of the water was measured and it was no more than two feet four inches, but that it was generally from three to four feet; that, after the contract, the plaintiff proceeded to erect suitable buildings and machinery for his factory, at a cost of five or six hundred dollars.

The following instructions were given at the instance of the plaintiff:

“The jury are instructed that by the terms of the contract, Maddox was bound to furnish to Morse sufficient water power to drive a wheel to operate his saddle-tree factory, and the only condition was, that Morse was not to use that power so as to interfere with Maddox's grist-mill. If, then, Morse, upon the faith of this obligation of Maddox, proceeded to, and did put up buildings and machinery to carry on the saddle-tree business, and if Maddox did suffer his dam to get so low or leaky that it furnished insufficient power, so that Morse could not operate his wheel profitably, and in consequence had to abandon his business, then Maddox is liable in damages for the value of the buildings erected by Morse, and for losses sustained in selling out his machinery; that Maddox was bound to keep his dam in the condition it was at the time of the contract, and if he failed to do so, he is liable to Morse for whatever damages he may have sustained.”

The defendant asked the following instructions, the first of which was refused, and the others granted by the court:

1. That by the terms of the contract between Maddox and Morse, Maddox was under no obligation to keep his dam at any particular height, or to keep any particular head of water, and, unless the jury shall find that Maddox, by his own act, lowered his dam so as to prevent Morse from carrying on his business, they must find for the defendant.

2. Unless the jury shall find from the evidence, that there was insufficient water furnished from Maddox's dam to do the business required by Morse in his saddle-tree factory, they will not assess any damages against him on account of his dam being out of repair.

3. That Maddox cannot be held responsible for his dam being injured by high water, if he repaired it in a reasonable time after the injury.

4. If the jury should find that the dam was kept by Maddox, or his agent, in the same state of repair in which it was at the time of the contract, they will assess no damages against him for want of sufficient water to carry on the saddle-tree factory.

5. If the jury shall find from the evidence, that Morse abandoned his business of making saddle-trees for any other cause than the want of water, they will find for the defendant.

6. That if the jury should find from the evidence, that the head gate was shut down after Morse had abandoned...