Tucker v. Tucker ( 1872 )

Campbell, J.

■ The original bill in this cause was filed to foreclose a mortgage given by Hiram A. Tucker to his parents, the complainants, conditioned to furnish them a house and maintenance, and the use of a horse and buggy, and to perform some other conditions. In case of election they were to have five hundred dollars a year in lieu of the various items of maintenance.

On the I4th of April, 1869, a decree was made establishing their right: First, to maintenance in manner provided, or in lieu thereof, five hundred dollars a year which it was declared.they had elected to receive; second, to a house; and third, to the use- of a horse and buggy "whenever they or either of them may desire, and call upon the said Hiram A. for one ; which demand has been made by complainants (and the complainants being hereby. allowed the sum of twenty-five dollars per year for failure to furnish the same).” The decree then went on to state that all these conditions had been broken, and after allowing á deduction from the amount due • complainants on the bond and mortgage, of two hundred dollars per year for two years, and three months’ separate support of Mrs. Tucker, and a future allowance of the same amount so long as she was so separately provided for, decreed payment to Augustus P. Tucker of the balance due on the mortgage. It contained also a provision for coming in on future defaults for further decrees on the foot of the original decree.

In- July, 1871, complainant, Augustus P. Tucker, petitioned for a further decree on account of a breach of the bond by failure to supply him with a horse and buggy, and asked for a reference to ascertain the amount due; but the court assuming that the value of that privilege had been already fixed by the decree at twenty-five dollars a year, proceeded, without a reference, to order relief on that footing, and allowed him fifteen dollars per year, on the theory that the decree had determined his share at three-fifths. From this he appeals.

We think the court should have taken steps to ascertain the proper amount of relief, without reference to the sum fixed by the former decree. The sum of five hundred dollars a year was liquidated by the bond itself, and therefore no question could arise concerning its amount; and therefore, the court very properly apportioned it' so long as the wife received a separate maintenance, which it was contemplated might be permanently. But the value to complainants of the use of a horse and buggy could not be determined in advance, and the statute in regard to mortgages payable by installments only allows a decree to be made at any time for amounts actually due. — Comp. L., §§ 3574-■5-6-7. No court can, therefore, decree in advance what measure of damages shall be given for future breaches, where the mortgage furnishes no means of computation, and where the amount must be fixed by proof of the extent of the injury. And we think no design is shown to make the decree in this case perform any such office.

The provision in the bond and in the decree, concerning the furnishing of a horse and buggy, is not joint, but joint and several, and contemplates that either complainant may have a separate cause of grievance for a failure. No one could speculate in advance >vhat would be required to comply with the reasonable wishes, or to accommodate the business, or aid the infirmities, of either complainant. The necessity might increase or diminish according to circumstances. Increasing age might require such accommodation more frequently, and it might render the parties incapable of using it. The main object of the bond was to furnish an assurance of the use of a horse and buggy when desired, and any attempt to commute in advance what the parties had not themselves provided for commuting, could hardly fail to cause injustice. Not only might occasions multiply, but the expenses of obtaining the use of a horse and buggy could hardly continue uniform when the prices of all commodities fluctuate; and the commutation fixed might be excessive, or it might be absurdly inadequate. If the parties do not agree on the amount,'there is no way of ascertaining it except by taking steps to have the proper measure of redress determined by -proofs under a reference, 01-some other mode of inquiry, where the parties can be heard and the testimony duly weighed and considered. And on such a hearing the amount of damages allowed for a former breach should receive no attention whatever.

The decree must be reversed, with costs, and the cause must be remanded to the circuit court to proceed to an inquiry, by reference or otherwise, to ascertain and determine the amount of compensation which should be allowed to the complainant, Augustus P. Tucker, for the failure to furnish him the use of a horse and buggy, and upon such ascertainment and determination, to make the usual decree of foreclosure and sale to satisfy the amount found, due, with costs of both courts.

The other Justices concurred.