Thiebaud v. The Union Furniture Co.

• Decision Date: 21 January 1896
• Docket Number: 17,306
• Citation: 42 N.E. 741,143 Ind. 340
• Parties: Thiebaud, Trustee, et al. v. The Union Furniture Company
• Court: Indiana Supreme Court

42 N.E. 741

143 Ind. 340

Thiebaud, Trustee, et al. v. The Union Furniture Company

No. 17,306

Supreme Court of Indiana

January 21, 1896

From the Switzerland Circuit Court.

The judgment is reversed, with instructions to grant a new trial.

G. S Pleasants, C. E. Walker and W. D. Ward, for appellants.

C. S Tandy and F. M. Griffith, for appellee.

OPINION

Howard, J.

This was an action brought by appellee to enforce the specific performance of a contract, claimed to have been made by appellants to pump water for appellee, whenever requested with damages as an incident for an alleged failure to do so on demand.

The contract in suit is contained in a deed by which certain described lands are conveyed to appellants, including in the tract so conveyed "that part of lot 6 in the city of Vevay," on which the well in question is located. In this deed there is a reservation to appellee of the right to the use and withdrawal of water from said well, for appellee's factory, situated on lots adjoining said lot 6; together with a further right, in case appellants fail to pump water, when requested, according to which latter right appellee is authorized to enter upon said lot 6 and operate the well and use the water therefrom.

The contract sued on provided that appellee should pay appellants one dollar and fifty cents a day for each day's pumping and that appellants should do such pumping whenever requested by appellee.

There were three deeds for the property, one from the appellee to the McLean Chair, Crib and Furniture Company also a corporation, one from the McLean company to the appellant, Tamar H. Ward, and one from said appellant to appellant, Charles V. Thiebaud, as trustee for himself and the other appellants. The last deed is not set out in the record, having been lost or mislaid. It is agreed that each of the deeds contained the original reservation in favor of appellee as to its rights to use water from the well on lot 6 for its factory; and contained also the contract here sued on, according to which the appellants assumed the obligation to pump water for appellee's factory, whenever requested, at the compensation of one dollar and fifty cents per day.

To the complaint setting out the foregoing and other facts, including also an allegation of a failure of appellants to pump water when requested, several special paragraphs of answer and of cross-complaint were filed; to all of which demurrers were sustained, and the cause went to trial on the general denial.

There was a finding by the court in favor of appellee, followed by a judgment for two hundred dollars damages and a decree for a specific performance of the contract, namely, that appellants should pump water from said well at the stipulated compensation, whenever required to do so by appellee.

The errors assigned call in question the sufficiency of the complaint, and also the correctness of the court's action in overruling the motion for a new trial and in overruling the motion for a modification of the judgment.

The reservation and contract as to the use of water by appellee, as the same are set out in the original deed, and substantially repeated in the other deeds, including that under which appellants hold title, are as follows, standing immediately after the granting clause and the description of the land conveyed, to-wit:

"Excepting therefrom and reserving unto the Union Furniture Co., of Vevay, Ind., their successors, grantees and assigns forever, the right to the free and uninterrupted use and withdrawal of water from the well situated on the part of lot No. 6, together with the right upon the failure of the grantees herein, to pump the water for the said Union Furniture Co. from said well, to enter upon that part of lot No. 6, herein conveyed, and to take possession of the same, and to operate the well and use water from the same. It being understood and agreed that said Union Furniture Co. is to have the use and withdrawal of water from said well for the purpose only to operate their furniture factory upon the lots where now situated.

"And said Union Furniture Co. agrees to pay said McLean Chair, Crib and Furniture Co., as compensation for pumping said water from said well to said Union Furniture Co., at the rate of one dollar and fifty cents per day for each day's pumping of ten hours per day, and said McLean Chair, Crib and Furniture Co. agrees to do said pumping whenever required by said Union Furniture Co., said Union Furniture Co. laying all connecting pipes."

The two foregoing clauses are quite unlike in character. The first is plainly a covenant running with the land conveyed, and as such is binding upon the grantees, their successors and assigns forever. The last clause, however, being the contract in suit, is simply a personal agreement between the immediate grantors and grantees. Had this clause not been inserted in the deed to appellants, it is clear that the contract would not be binding upon them, while at the same time their title to the land purchased by them would remain intact, subject only to the right of appellee to take water from the well on lot 6. The contract, though written in the deed, is quite independent of it.

Appellants first contend that under the statute of frauds, the contract was invalid, for the reason that it was without limit as to time, and was not "signed by the party to be charged therewith."

This...