Howe v. Salisbury , 145 Mass. 279 ( 1887 )

W. Allen, J.

The agreement declared on was an agreement in the suit in equity between the parties. The plaintiff sought in that suit to have the defendant enjoined against holding water in his reservoir so that it would not flow to the plaintiff’s mill below, and also sought for damages for such detention of the water. The agreement related to proceedings in the former branch of the case. The plaintiff had made a motion for an interlocutory injunction, and a day had been assigned for a hearing upon the motion. The defendant desired a postponement of the hearing. The plaintiff contends that there were mutual promises; that the plaintiff promised that the hearing should be postponed, and the defendant promised that he would let down water from his reservoir to run the plaintiff’s mill. But whatever the agreement may have been, it related only to the proceedings in the suit and to the motion for an injunction, and the remedies of the parties for a breach of it must be sought in the suit. The agreement was intended to be an arrangement in regard to proceedings in the suit, and not to be the ground of an action at law. The plaintiff was seeking damages, and could recover in his suit for all he might sustain by the wrongful withholding of the water by the defendant, and it was clearly not within the scope and purpose of the agreement to provide for a separate action at law for a part of such damages, or to make the defendant liable for them, without regard to whether the detention was wrongful or of right. Nonsuit to stand.