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only as the facts alleged made it the owner, of the cotton; and this was only in the limited sense that it could hold and control the cotton until the drafts were paid, and as a means of insuring payment or recovering loss. No contract or agreement of the bank, either with the drawer or drawee, is alleged to make its relation to the contract of sale other than that which resulted from the simple fact that the drafts for the price of the cotton and the bills of lading were purchased by it from the vendors of the cotton. The concluding language in the fourth and fifth paragraphs of the petition, referring to the undertaking of the bank to carry out the contract, does not charge nor, as we construe the pleading, intend to charge, that the bank affirmatively agreed to carry out the contract, but states, as the pleader's construction of the facts alleged, that such undertaking arose from the purchase, as held in Landa v. Lattin, 19 Tex. Civ. App. 246, 46 S. W. 48. Necessarily, the legal effect of the transaction stated between the bank and White & Company was only to entitle the former to collect, either from the drawee or, in case of its refusal to pay, from the drawers, the money called for by the drafts, and, to secure this right, a limited ownership and control of the cotton was conferred by the indorsement and delivery of the bills of lading. Such is the legal effect of the facts alleged, and such was the legal effect of the transactions passed upon in the authorities cited; and those decisions clearly control this case. It was as true in those cases, as it is in this, that the purchasers of the bills of exchange secured by the bills of lading originally acquired only such rights against the drawees as the drawers had against them, and that, in order to put the holders in a position to require acceptance or pay. ment of the bills of exchange, performance of the contract of sale by the drawers was essential; and it is equally true in this case, as it was in those, that, in paying the drafts, the drawees, acting on the credit of the drawers and not of the holder, became bound to the latter, and that a failure of the consideration moving from the drawers to the drawee cannot affect the rights of the payee thus acquired in good faith upon a consideration moving from itself to the drawers.

The latest decision called to our attention is that of the supreme court of Iowa in the case of Tolerton v. Anglo-California Bank, 112 Iowa, 706, 84 N. W. 930, in which the court, after discussing Landa v. Lattin, 19 Tex. Civ. Ap.. 246, 46 $. W. 48, and Finch v. Gregg, 126 N. C. 176, 35 S. E. 251, enunciates what we regard as the correct rule.

The decisions referred to are wholly inconsistent with the theory that in such a transaction the purchaser of the draft and bill of lading becomes substituted for the vendor to such extent that he assumes the obligations of his contract with the vendee. This is not true of assignees generally. While an assignee may not by his assignment acquire any right against the party against whom the claim is asserted, he does not, by taking the assignment merely, assume the obligations of the assignor. The true question in such cases is whether or not money so paid upon bills of exchange can be recovered as having been paid by mistake, which is negatived by the rules of the law-merchant; and not whether or not there has been a breach of contract by the holder, who never has a contract with the drawee of the bill of exchange until the latter honors it.

We answer that the court did not err in sustaining the general demurrer.

Bona Fide Ownership of Negotiable Paper is discussed in the monographic note to Bedell v. Herring, 11 Am. St. Rep. 309-326. As to the defense of want of consideration as against a bona fide holder, see Oppenheimer v. Bank, 97 Tenn. 19, 56 Am. St. Rep. 778, 36 S. W. 705.


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(53 W. Va. 87, 44 S. E. 520.] COVENANTS.-A Covenant is said to Run with the Land When either the liability to perform it or the right to enforce it passes to an assignee of the land. (p. 959.)

COVENANTS.--To Create a Covenant Real There must be Privity Between the Parties. Otherwise it is simply a personal obligation, neither binding nor benefiting the land in the hands of heirs, devisees, or assigns. (p. 959.)

COVENANTS.-A Covenant does not Run with the Land UAless contained in some grant thereof or of some estate therein (p. 959.)

COVENANTS REAL-Mere Words of Description cannot Cre. ate. If a covenant is not in its nature and kind a real covenant, the mere declaration of the parties that it shall run with the laud can not make a real covenant, though so stated in the document. (p. 959.)

COVENANT Binding the Land-Right of Assignee of Grantee to Recover upon.-Where, in a contract between the owner of lands and another, the latter agrees to maintain and keep in good condition certain dams for a consideration specified, and the contract declares that it shall continue in force for five years, and at the option of the land owner, his heirs, representatives, and assigns exerciseil within five years, the agreement shall continue in force for ten years from its date, the grantee or other successor to the title of such land owner may maintain an action against the other party to the contract for a breach thereof. (p. 960.)

COVENANTS-Assignee of, Who is.—Where an agreement with a land owner stipulates for the maintenance and repair of certain dams for the benefit of his land, and purports to be in his favor and that of his heirs, representatives, and assigns, one who, after his death, purchases such lands at a judicial sale is entitled to sue upon the agreement as “assignee." (p. 960.)

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RES ADJUDICATA-Decree Allowing a Claim Against an Estate.—If a bill is brought to convene the creditors of a decedent, and states that a person named claims a debt against the decedent, which was not conceded by him, and such person appears in such proceeding and presents such claim, which is for maintaining and keeping in repair certain dams according to the terms of a written agreement, and evidence is taken to sustain and to repel the claim, and a decree results allowing it, this is conclusive upon the administrator and successor in interest of the decedent's title to the lands. benefited by the agreement that the claimant had not committed any breach of it, and if such lands are subsequently sold to pay the debts of such decedent, the purchaser cannot maintain an action against such claimant for a breach of the agreement alleged to have occurred during the time for which the claim was allowed. (p. 962.)

RES JUDICATA-Time and Parties to Which Applies.-A decree establishing a claim against the estate of a decedent for acts. claimed to be done in the performance of a covenant for the benefit of his land, while conclusive of such performance during his lifetime, is not conclusive that a breach of the covenant was not committed after his death, and does not prevent one who has acquired title to such land under a decree directing its sale for the payment of decedent's debts from maintaining an action for the breach of such covenant alleged to have been committed during the plaintiff's ownership. (p. 962.)

DAMAGES, Entire and Permanent, When Recoverable and When not.—If a cause of injury is in nature permanent, and the recovery for such injury would confer a license on the defendant to continue it, entire damages may be recovered in a single action; but where the cause is not permanent in character, but such that it may be supposed that the defendant would remove it rather than suffer at once a heavy recovery for entire, permanent, and lasting damages, including the future, damages canot be recovered in a single action, but actions may be maintained repeatedly 2.9 long as the cause of injury continues to inflict damages. (pp. 963, 965.)

COVENANT–When a Breach does not Support a Recovery as for a Total Breach. One suing for the breach of a contract to maintain a dam at a specified height for a designated number of years, and establishing such breach at a time anterior to the commence. ment of the action, is not entitled to treat the contract as abrogated, and to recover, in addition to the damages sustained up to the present time, also all future damages which the jury believe must nec. essarily result from such total breach down to the end of the contract. (p. 964.)

NEGLIGENCE, Contributory as a Bar to Actions of Contract. In an action to recover damages for the breach of a contract, the contributory negligence of the plaintiff ordinarily does not preclude his recovery, as would be in the case of an action of tort. Such negligence rarely releases the defendant from the obligation to pero form his contract, but is always to be considered in fixing the amount of the damages, i, e., so much of the damage as is attributable to the plaintiff's negligence should be excluded from the recovery. (p. 967.)

DAMAGES Allowable for the Breach of a Contract must not go beyond fair compensation for the total logs sustained and must be such as are the reasonable and probable consequences of the act. complained of. (p. 968.)

DAMAGES-Punitive Damages cannot be Allowed in Actions on the case. (p. 968.)

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A. M. Prichard and S. S. Greene, for the plaintiff in error.

Flournoy, Price & Smith and A. B. Littlepage, for the de fendant in error.

89 BRANNON, J. Josie M. Hurxthal brought an action of covenant against St. Lawrence Boom and Manufacturing Company in the circuit court of Greenbrier county and received a verdict and judgment for four thousand dollars, and the company sued out this writ of error.

Ben Hurxthal owned a flour and grist-mill on Greenbrier river, which was supplied with water by a race fed by a dam in the river near the head of the race. The said company owned a sawmill which vas also fed by said mill-race at a point some distance above the Hurxthal mill. The said company

had booms in the river above the mill-race for catching logs. The logs sawed on the company's sawmill were floated down the river to the head of the mill-race and then down the mill-race to a point a little above the sawmill, at which point the logs left the mill-race and were floated to the mill on a lateral channel leading from the mill-race to the river. Near the point where this channel entered the river the channel was divided into two parts by an island and across the two mouths of this channel, which channel is called a log pond, there were two small dams erected to prevent the water which flowed into the mill-race at its head from going into the river through the log pond, not only to keep the pond from being too shallow but, also to keep it from being lost from the grist-mill farther on down. 90 These dams had been erected by the Boom Company. On the thirteenth day of June, 1894, said Boom Company and Ben Hurxthal entered into an agreement, under seal, by which the said company bound itself to "maintain and keep in good repair the said dam in Greenbrier river” and the two small dams at the foot of the log pond for a period of five years. The said river dam was to be maintained at the height which should give the same head of water as if erected at the site of an old dam which stood just below the head of said mill-race, and had been built at the latter point seven feet high from the surface of the water at low stage the object being to make the dam equivalent to a seven foot dam on the old site. The agreement further bound the company to maintain in good repair the two dams at the foot of the log pond at such height as should prevent the water in the mill-race from being drawn off through the channels closed by the said two small dams. The agree

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