Snider v. Robinett.

• Decision Date: 28 March 1916
• Parties: Snider v. Robinett.
• Court: West Virginia Supreme Court

78 W.Va. 88

Snider

v.Robinett.

Supreme Court of Appeals of West Virginia.

Submitted March 9, 1916.

Decided March 28, 1916.

1. Covenants Action on Covenant Plea of Non Est Factum Issues.

In covenant there is no general issue, strictly speaking, as in debt, assumpsit or trespass on the case, and the plea of non est factum puts in issue only the execution of the covenant sued on. But if the declaration does not aver the covenant in its exact language, but simply its legal effect, the plea puts that matter in issue as well as its due execution. (p. 90).

2. Evidence Ambiguous Written Contracts.

To enable the court to construe a deed or other writing, ambiguous on its face, it is always permissible to prove the situation of the parties, the circumstances surrounding them when the contract was entered into and their subsequent conduct giving it a practical construction, but not their verbal declarations. But, if a latent ambiguity is disclosed by such evidence, such for instance as that the terms of the writing are equally applicable to two or more objects, when only a certain one of them was meant, then prior and contemporaneous transactions and collocutions of the parties are admissible, for the purpose of identifying the particular object intended. (p. 92).

3. Trial Refusal of Instruction Evidence Certified Copy of Recorded Deed.

Where a certified copy of a recorded deed is used as evidence in the trial of the issue of non est factum, in lieu of the original shown to have been lost, and there is no note or memorandum on such copy respecting any interlineation, erasure or alteration in the original, it is proper to refuse an instruction to the jury, the ef feet of which would be to tell them that they should consider the absence of any such memorandum as evidence, in determining whether certain words were added to the original deed after its execution by the grantor, when the evidence shows that the controverted words appeared as the concluding words of the last sentence in the deed, in regular order and in the same handwriting as the body thereof. (p. 92).

4. Trial Instructions Ignoring Issues.

In an action of covenant, where the only issue is non est factum, it is error to give to the jury a binding instruction which ig nores that issue. (p. 91).

5. Covenant Breach Pleading Damages Recoverable.

Notwithstanding defendant does not take issue on an alleged breach of covenant, and pleads non est factum, only, plaintiff can recover only nominal damages, if the termination of the issue is favorable to him, unless he proves with reasonable certainty the extent of his actual damages. (p. 91).

Error to Circuit Court, Mercer County.

Action by R. L. Snider against J. W. Robinett. Judgment for defendant, and plaintiff brings error.

Reversed and new trial awarded.

Woods & Martin and John R. Pendleton, for plaintiff in error.

J. A. Meadows and H. A. Ritz, for defendant in error.

Williams, President:

To a judgment for defendant in an action for breach of covenant, plaintiff was granted this writ of error.

Defendant conveyed to plaintiff by deed dated December 24, 1909, all the timber on a certain tract of land, together with the privilege of cutting and removing the same by the 1st of March, 1911, in consideration of $700.00, and covenanted, according to the allegation of the declaration, to furnish plaintiff a road leading from said tract of land to the public road, for the purpose of hauling to market the lumber to be manufactured out of the timber. The concluding sentence of the deed, containing the covenant alleged to have been broken, is as follows: "And said Snider agrees to repair any fencing that are damaged by removing the said timber & said Robinett is to furnish road to Snider. Witness the following signature and seal. (Signed) J. W. Robinett. (Seal)." Plaintiff alleges that defendant failed and refused to furnish him a road to the public highway, wherefore he was damaged to the extent of $800.00.

A demurrer to the declaration was overruled and defendant pleaded non est factum, and issue was joined thereon. There was no other plea.

There is a motion to dismiss the writ of error on the ground that the amount of damages is less than $100.00. Plaintiff proved that it cost him $36.50 to buy another right of way and grade it, so he could haul his lumber over it to the public road; and it is contended by counsel for defendant that that is all the damages his proof shows he is entiteld to recover, wherefore, they say, this court is without jurisdiction. But, if plaintiff is entitled to recover at all, there is another element of damages which the jury had a right to consider, and that is the additional cost of haulage, occasioned by his not getting the road which he claims defendant covenanted to furnish him. Plaintiff says this extra cost was $1.00 per M. feet, which shows that the amount actually in controversy is more than $100.00, there being more than 100, 000 feet of lumber. The motion to dismiss is, therefore, overruled.

In covenant there is no general issue, as in debt, assumpsit or trespass on the case, and the plea of non est factum puts in issue only the execution of the covenant sued on. Hogg's PL & Forms, sec. 226; Shipman on PL, 288; Snell v. Snell, 4 B. & C. 736, 10 E. C. L. 543; Cooper v. Watson, 10 Wend., (N. Y.), 202; Norman v. Wills, 17 Wend. 136; Kellog v. Ingersoll, 1 Mass. 4; Courcier and Ravises v. Graham, 1 Ohio 154; and Bonsach v. Roanoke Co., 75 Va. 585. But if the declaration does not aver the covenant in its exact language and simply avers its legal effect, the plea of non est factum puts in issue the actual covenant as well as its due execution. North v. Wakefield, 13 Q. B. 536, 16 Eng. Rep. 1368.

On the issue of non est factum the evidence is very conflicting, still there is enough evidence to sustain the verdict for defendant, and it can not be disturbed unless there is some error in the rulings of the court, prejudicial to plaintiff. Not knowing what the result of that issne would be, plaintiff had a right to prove actual damages. For, although not put in issue by any plea, he had to prove damages before he could recover more than nominal damages. He was entitled to that much without proof, if he prevailed on the issue joined. Defendant also introduced evidence on the question of damages, and the evidence on this question also is very conflicting.

The giving of three instructions on behalf of defendant is assigned as error. No. 1 is good. No. 2 is as follows: "The court instructs the jury that even though you should believe that the defendant was obliged to furnish the road referred to in the evidence in this case as contended for by the plaintiff, still, if you further believe that said road was open and free to be used for a sufficient length of time to allow the plaintiff reasonable opportunity to remove the timber from said land, and the plaintiff consumed such time in hauling out other lumber, then you shall find for the defendant." There is no proof that plaintiff consumed any more time in removing the timber than he was allowed by the terms of defendant's contract with him, and, in view of the undisputed proof that he paid out $36.50, to buy and grade another road to be used instead of the one which he claims defendant covenanted to furnish him, this instruction is erroneous and misleading. It is binding and does not submit to the jury all the material facts. Plaintiff's right to a verdict, in any event, depends of course on the covenant, and if the covenant exists his right to a verdict is not defeated by his failure to haul the timber off the land, before the road was closed by the servient landowner. His lack of diligence, if shown, in sawing and stacking the timber, after having severed it, would affect the quantum of his damages. But his contract did not limit the time in which he could haul it away from the mill site. The undisputed evidence is that he had a right, until March 1, 1911, to cut and remove the timber to another piece of defendant's land, and he was unlimited as to the time to saw and remove the lumber from the mill site. If the jury believed the covenant existed, plaintiff's right to nominal damages, at least, followed as a matter of course. It is impossible to say whether the jury found for defendant on the issue of non est...