Plaintiff v. Monongahela R.R. Co.

Decision Date15 December 1900
Citation48 W.Va. 542
PartiesMartin et al. v. Monongahela Railroad Co.
CourtWest Virginia Supreme Court
1. Declaration Duplicity.

Under our statute law a demurrer will not lie in any case because of duplicity in a declaration, (p. 543).

2. Demurrer Parol Evidence.

A court can consider no sort of parol evidence, such as the declaration of the parties before, at the time of, or after the execution of a contract in writing; nor can the court call in aid any kind of parol testimony to alter, explain, or modify a written contract, if it is free from ambiguity on its face. (p. 544).

3. Parol Evidence Valid Contract.

Parol evidence will not be received to ingraft upon or incorporate with a valid written contract an incident occurring contemporaneously therewith, and inconsistent with its terms, (p. 544).

Error to Circuit Court, Harrison County.

Action by Hugh M. Martin and others against the Monongahela Railroad Company. Judgment for plaintiffs, and defendant brings error.


John Bassel, for plaintiff in error. Melvin Sperry, for defendants in error.

English, Judge:

Hugh M. Martin in his own right, and Mary Alta and Hattie L. Martin, infants suing by their next friends Hugh M. and Edith E. Martin brought an action of assumpsit against the Monongahela R. R. Co. in the circuit court of Harrison County. The action was predicated upon the alleged breach of a covenant contained in a deed executed by Jesse V. Martin and wife to the defendant for a right of way through the lands of the grantor by which the defendant was to make and maintain necessary and convenient crossings, not less than two in number, and erect and maintain gates in the fences at such crossings. This contract was made in the life time of said Jesse Martin, and by his will he devised the land over which said right of way passes to the plaintiffs.

The defendant demurred to the declaration, and each count thereof. It contained two counts, and the court sustained it as to the first and overruled it as to the second. While the first count is somewhat informal, yet we regard it as sufficient under section 9 of chapter 125 of the Code. The second count is more formal and sets forth the cause of action more clearly; so that so far as the form of the declaration is concerned we think it is not demurrable.

The plaintiffs in their declaration claim that their testator in his life time was damaged by the defendants failure to comply with the covenant; and that they have suffered damage also by reason of such failure, to the amount on the whole, of five thousand dollars; which must be regarded as duplicity in pleading for the reason that the personal representatives of said Jesse Martin would be entitled to recover the damges which accrued by breach of said contract during the life time of said testator; and the devisees would be entitled to recover the damages accruing subsequent to his death. On this point the law is stated thus in the A. & E. Enc. of Law (2d Ed.) 162: "The heirs of a covenantee have a right to the benefit of a covenant running with the land of their ancestor and may maintain an action for a breach thereof which occurs after his death." Citing numerous authorities.

Under the title Covenant, Enc. Plead. & Prac. vol. 5, page 354, we find it stated that "The rule in regard to the bringing of actions by personal representatives for the breach of a covenant in favor of the decedent is this: When the covenant in regard to real estate such as a covenant against incumbrances or a covenant to convey, is broken in the lifetime of the testator the personal representative is entitled to the damages and is the proper party plaintiff in an action to recover them." And on the next page it is said: "Though a breach of covenant in regard to land be broken in the lifetime of the testator, yet if it be a continuing breach in the lifetime of the devisee, the latter may maintain an action for the recovery of the damage occasioned."

Now, while no effort seems to have been made by the pleader to separate the amount of damage claimed to have accrued during the testators lifetime, from that accruing after his death, yet this can only be regarded as duplicity, and this Court held in Baker v. Sweeny et al., 13 W. Va. 158, that "under our statute law no demurrer will lie in any case because of duplicity in a declaration."

The testimony adduced in the case was submitted to the jury without exception or objection, and a verdict was rendered for one hundred and fifty dollars damages, and the defendant moved the court to set the verdict aside and grant it a new. trial upon the ground that the verdict was contrary to the weight of the evidence, and without evidence, and because the court refused to give the first instruction asked for by defendant, and refused to give the second instruction as prayed for by it; which motion was overruled, the defendant excepted, the jury, were taken to view the premises, and on their return found...

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