Norfolk & W. Ry. Co v. Mundy

• Decision Date: 18 November 1909
• Citation: 110 Va. 422,66 S.E. 61
• Court: Virginia Supreme Court
• Parties: NORFOLK & W. RY. CO. v. MUNDY.

(110 Va. 422)

66 S.E. 61

NORFOLK & W. RY. CO.

v.MUNDY.

Supreme Court of Appeals of Virginia.

Nov.18, 1909.

1. Contracts (§ 176*)—-Construction—Question for Court.

The general rule is that the construction of all written instruments adduced in evidence is solely for the court.

[Ed. Note.—For other cases, see Contracts, Cent. Dig. §§ 767-770, 1097; Dec. Dig. § 176.*J

2. Covenants (§ 125*)—Measure of Damages for Breach—Covenant of Seisin.

The measure of damages for breach of a covenant of seisin, where nothing passes by the deed, is the consideration paid, with interest.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 235; Dec. Dig. § 125.*]

3. Estoppel (§ 68*)—Position in Judicial Proceeding—Binding Effect of Decrees.

Where a defendant was impleaded with another, and on his own motion, against the protest of his codefendant, the suit was dismissed as to him, on the ground that he was not a necessary party, though complainant insisted that he be retained as a party to aid in the defense, so there might be a decree over against him in case of an adverse decision, he is estopped to deny the binding effect of the decrees therein.

[Ed. Note.—For other cases, see Estoppel, Cent. Dig. § 165; Dec. Dig. § 68.*]

4. Covenants (§ 121*)—Persons Bound by Judgment — Party Failing to Defend on Notice.

It is common practice to give notice to one bound by a covenant of title of the pendency of suit involving such title, and to appear and defend; and, if on such notice he fails or refuses to do so, he is as much bound by the judgment or decree in the case as if he had been formally impleaded.

[Ed. Note.—For other cases, see Covenants, Cent. Dig. § 223; Dec. Dig. § 121.*]

5. Evidence (§ 409*)—Parol Evidence Affecting Deed of Release.

It is error to admit parol evidence to vary, contradict, or add to the plain and unambiguous terms of a deed of release.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 1843-1845; Dec. Dig. § 409.*]

6. Pleading (§ 355*)—Appeal and Error (§ 1042*) — Striking Out Special Pleas — Harmless Error.

It is error to overrule a motion to strike out special pleas equivalent to the general issue, though failure to strike them out does not of itself constitute reversible error.

[Ed. Note.—For other cases, see Pleading, Cent. Dig. § 1102; Dec. Dig. § 355;* Appeal and Error, Cent. Dig. §§ 4112, 4113; Dec. Dig. § 1042.*]

Error to Circuit Court, Botetourt County.

Action by the Norfolk & Western Railway Company against James Mundy. There was a judgment for plaintiff for less than the amount claimed, and it brings error. Reversed.

T. W. Reath, M. McCormick, and E. M. Pendleton, for plaintiff in error.

Benj. Ha-den, for defendant in error.

WHITTLE, J. This action was brought by the Norfolk & Western Railway Company against the defendant in error, Mundy, torecover damages for a breach, of covenant, involving the alleged false representation that the defendant was the owner of a certain water right in connection with a stream flowing through a race across plaintiff's right of way, which the company rested under contractual obligation to maintain, from which obligation the defendant, in consideration of $500, undertook to release the plaintiff.

In the indenture of release the defendant granted to the plaintiff the right to fill in its trestle at the point in question, providing only one culvert for the passage of the waters of the stream. It transpired that prior to the execution of the deed of release the defendant had conveyed his interest in a foundry and machine shop lot, to which the water right was appurtenant, to the Riverside Land Company. After sundry intermediate alienations the property was purchased by Obenchain, who filed a bill in equity against the railway company and Mundy to require them to restore his water rights; the flow of the water having been diverted by filling in the company's trestle.

The circuit court granted the relief prayed for, and its decree was affirmed by this court on appeal. Norfolk & Western Ry. Co. v. Obenchain, 107 Va. 596, 59 S. E. 604.

It will thus be seen that Mundy's attempted release of the company from its obligation to maintain the water right was inoperative by reason of his having previously disposed of his interest in the subject-matter.

To the present action the defendant pleaded the general issue and certain special pleas, and thereupon the jury returned a verdict for the plaintiff for $77.41.

The ruling of the trial court in denying the motion of the plaintiff for a new trial, and in entering judgment upon the verdict, constitutes the ground of this writ of error.

The court's refusal to strike out plea No. 2, in which the defendant seeks to set off the estimated value of a roadway under the trestle, which was destroyed by the fill, against the plaintiff's demand, and permitting the introduction of parol evidence in support of the plea, and refusing to give instruction "B" at the instance of the plaintiff, together constitute the crux of the case. It will be more satisfactory, therefore, to consider these assignments concurrently.

The instruction is as follows: "The court' instructs the jury that the only thing conveyed by James Mundy to the Norfolk & Western Railway Company by his deed filed with the plaintiff's declaration was the release of the obligation...