Lomis v. Ruetter , 9 Watts 516 ( 1840 )

The opinion of the court was delivered by

Sergeant, J.

The plaintiff in this suit filed a statement instead of a declaration, and on the trial the defendant objected to the evidence offered of the articles of agreement of lease from the plaintiff to the defendant as irrelevant and incompetent, and not between the present parties. The court below admitted the evidence, and exception was taken by the plaintiff.

This is the point assigned as error in the first and third errors, and raises the question, whether, in an action of debt brought to recover, among other moneys, a sum due for rent on a lease under seal, the plaintiff may file a statement agreeably to the act of assembly of the 21st of March 1806, sect. 5. That act seems to have been designed to afford facilities to persons to recover debts due to them on instruments, or demands of a plain and simple kind, without the intervention of attorneys. • It therefore confines the privilege of filing a statement to suits brought “for the recovery of a debt founded on a verbal promise, book account, note, bond, penal or single bill,” or all or any of them. Although these words ought to receive, and have received, a liberal interpretation, yet a demand for rent due on a lease by a sealed instrument, does not seem to be comprised within them. Such a lease is neither a verbal promise, book account, note, bond, penal or single bill, nor can it, by any reasonable construction, be brought within these terms. It was certainly not the intent of the legislature to give the right to file a statement in every action of debt. This regarded not the form of the action, but the nature of the debt, and the manner in which it arose.

The act, therefore, confines the statement to a specific 'class of debts, simple in their character, plain in the evidence to prove them, and involving, ordinarily, nothing more than the right to money. Leases generally contain covenants and stipulations for the performance of various acts by both parties, as the present one does, and a suit upon them often involves the question of performance of conditions, defalcations for breaches or omissions, and various legal questions of a nice and complicated character, in which the legislature, by not including such demands, must have thought the ancient mode of pleading better calculated to attain justice between the parties. The farthest to which the court has gone in construing this act, falls short of the present case. I allude to the case of Gray v. Cunningham, 17 Serg. & Rawle 424, where it was held that a statement might be filed in debt on a recognizance of bail in error. But such a recognizance would well fall within the word bond, being defined to be an obligation of record. I do not concur with the defendant’s counsel, that the existence of conditions precedent, to be performed before a title to the money can arise, is an objection to a statement. The contrary seems to have been settled in Gordon v. Boyd, 6 Serg. & Rawle 53. But I am of opinion that debt upon a lease under seal is not a suit which is comprehended within the provisions of the act of the 21st of March 1806, authorizing a statement.

That being the case, the court below should have rejected the lease when offered, as irrelevant to the statement filed. There does not appear to me to be any more proper mode for the defendant to take advantage of the objection. He could not do it by demurring, because, on the face of the statement filed, it does not appear to be a claim upon a lease under seal; it is merely averred to be an agreement of a certain date. Nor would the court have struck off the statement on the defendant’s motion, because the plaintiff possessed the right to make such a statement, if he chose to run the risk of supporting it by evidence. The proper mode, when the evidence varies from the statement, and is of a character which would be inadmissible, if inserted in the statement, is to object to it when offered. The plaintiff could not justly complain that he was taken by surprise, because the defendant had, at a previous stage of the cause, entered his objection and protest against a statement in such a suit as the present, and the plaintiff ought then to have withdrawn it and filed a declaration, if he intended to proceed with the suit.

Second Error.—There is nothing in this assignment of error. Although Kingsbury rvas not considered as having authorized the defendant to execute the lease for him, and therefore was not a party to the instrument, yet it appeared that he had been a partner of the defendant in the business carried on under it, and was therefore interested in the event of this suit, being liable to account to the defendant for his proportion of the sum recovered.

Fourth Error.—The plaintiff, when leasing the mills to the defendant, covenanted that “ he would put up the dam and wing-dams [so] as to drive at least two saws in low water,” and this was one of the repairs which he was to make and complete before the first day of October following. The plaintiff alleged that this covenant was broken, inasmuch as the water had at times become so low that he was not able to work. The court charged, that if the want of water which the defendant experienced arose from the dam and wing-dams not being constructed by the 1st of October 1834, then any loss sustained ought to be deducted from the plaintiff’s claim. But if the want of water was in consequence of the lowness of the water in the river, and not owing to any defect in the dam and wing-dams, it would not be a subject of deduction.

It would seem, however, that something more was contemplated by the covenant than merely that the plaintiff would put up the dam and wing-dams. “ He will put up the dam and wing-dams so as to drive at least two saws in low water.” This includes the effect they would produce after being put up, as well as the putting them up. It seems to amount to a guaranty that they should be so put up as even in low water to drive at least two saws. The lowness of the water seems to be the thing warranted against, and cannot be used as an excuse for non-fulfilment of the covenant. The cases cited show that if a party will expressly covenant to do a thing, he is bound to fulfil it if by any possibility he may; and if he do not, the loss sustained must be borne by him, and not by the covenantee, who trusted to the covenant. In this answer of the court we think there was error.

Fifth Error.—This error is not sustained. It originated in the defendant’s idea that the plaintiff was bound to make the repairs when they exceeded two dollars. But this is not so. The covenant is, “ he is to pay all repairs exceeding two dollars.” Of course, the charge of the court was correct, that the plaintiff was only bound to pay for the repairs of the dam when made, and did not break his covenant by not making the repair himself.

J udgment reversed, and a venire facias de novo awarded.