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incapable of exact definition. But we think it is not law that if both parties are negligent in a nearly equal degree, but the defendant is, on the whole, the most negligent of the two, 101 the plaintiff shall prevail. To sustain the action, a greater than a merely perceptible difference must exist between the two degrees of negligence.” Applying these principles to this case it seems to me that if the defendant did by failure to keep the covenant by some act or omission after the death of Hurxthal, entailing damage to the plaintiff's mill after her purchase, then the defendant would be liable for such actual damage; but that any negligence of the plaintiff in allowing sand, gravel or laud to remain in the race, diminishing the flow of water to the mill can be shown in mitigation of damages. What is attributable to her negligence should be excluded from the damage. Therefore, I think plaintiff's instruction 7 is not objectionable. Defendant's instruction 9 propounds the proposition that the agreement of the 13th of June, 1894, “is based on the assumption that the then existing dam furnished the height of water therein specified and required, and that the same being signed by Ben Hurxthal, the presumption arises that he considered such head of water given by said dams.” I do not think this instruction is good, as we cannot say that the execution of the agreement by Hurxthal amounted to the admission put by the instruction. The very object of the agreement moving him to sign it may have been to secure such a dam. Still, we muust remember that the adjudication in the chancery suit forecloses the question of height of the dam, and fixes their height according to the contract on the 8th of March, 1898.
Defendant's instruction 10, saying that the decree in the chancery cause shows that the height of the dam was in controversy therein is good under the principles above stated upon that subject.
Defendant's instruction 12 is not good so far as it says that the contract is based on the assumption that the dams existed at its date at the lower end of the log pond then furnished the head! of water required by it; but the instruction is good in saying “if the jury believes the said dams then furnished sufficient water, and if the said defendant has maintained said dams to the same height they were on June 13, 1894, and has kept the trash and rubbish from the bridge and trestle across said race, 80 as not to obstruct the flow of water, and use due diligence in repairing said dams when necessary, they must find 102 for
the defendant,” except as to the date, June 13, 1994, the proper date being March 8, 1898.
Defendant's instruction 13 declares the adjudication in the chancery suit extends to the final decree in May, 1899, after the mandate of the supreme court reached the circuit court. I do not think the instruction good. I think that decree, for the purposes of this case, relates to the date of the death of Hurrthal. I shall say nothing upon the subject of excessiveness of damages in view of a new trial, further than to say that they were assessed on an improper basis and made greatly too large, because they cover the whole time from the plaintiff's purchase down to June 13, 1904. As to what damages the plaintiff suffered, if any, we do not say, nor whether the defendant is guilty of a breach of the contract. These matters are left for the new trial. It is very certain that in an action for a breach of contract the measure is more strictly confined than in cases of tort; the primary and immediate result of the breach are alone to be looked to: Wood's Mayne on Damages, p. 14, sec. 12. Punitive damages are confined to torts, and even then damages must be compensatory only as a general rule: Talbott v. West Virginia Cent. etc. R. R. Co., 42 W. Va. 560, 26 S. E. 311; Bodkin v. Arnold, 48 W. Va. 108, 35 S. E. 980. Damages must not go beyond fair compensation for actual loss sustained. They cannot be punitive in action on contracts (3 Parsons oli Contracts, 179 (169); 8 Am. & Eng. Ency. of Law, 632); compensation for actual loss is the test, the standard of damages in actions on contract: 1 Sutherland on Damages, secs. 12, 75. Damages for breach of contract in excess of actual conpensation are unwarranted and a ground for new trial: Rowland etc. Co. v. Ross, 100 Va. 275, 40 S. E. 922; Dougless v. Ohio River R. R. Co., 51 W. Va. 523, 41 S. E. 911. Neither in tort nor contract do damages go beyond such as are the reasonable and probable consequences of the act complained of, except in some cases of tort: Peters v. Johnson, 50 W. Va. 614, 88 Am. St. Rep. 909, 41 S. E. 190.
The plaintiff cross-complains that the court erred in allowing the record in the chancery suit, including depositions of witnesses, to go in evidence; but, as shown above, it was admissible. The evidence of John Briscoll, a shareholder in the defendant
company, was not admissible as to any conversation or transaction with Hurxthal; but that part of his evidence was
excluded and disclaimed by the defendant. I do not see that any conversation between Briscoll and Bailey as to leveling estimates of the height necessary to build the dam before it was built can be admitted. But I do not see any objection to evidence that leveling was done by Bailey.
I do not think, under principles above stated, that defendant's instruction given by the court is objectionable. It declared that the record in the chancery case shows that the height of the dam was in controversy, and was the matter in issue between the estate of Hurxthal and the company.
The plaintiff complains of the action of the court in admitting as evidence minutes of the defendant company in 1881, to show Ben Hurxthal's connection with the company at that time, and that the stockholders of the company claim under Ben Hurxthal, and to show his acquaintance with the business and properties of the company, the minutes being in his handwriting. Hurxthal had parted with all interest in the company before the dam was built and before the agreement, and I do not see that this evidence is relevant to the case or relates to it with sufficient closeness to authorize its admission.
We therefore reverse the judgment, set aside the verdict, and I grant a new trial and remand the case.
Corenants to Maintain Dams and keep them in repair run with the land: See the monographic note to Geiszler v. De Graaf, 82 Am. St. Rep. 673, on what covenants run with the land.
If an Injury is permanent, a single recovery may be had for the whole damage resulting; but if an injury is temporary in character, a recovery can be had only for the damages sustained up to the time of the commencement of the action, and successive actions may be brought as further damages accrue: Bowers v. Mississippi etc. Boom Co., 78 Minn. 398, 81 N. W. 208, 79 Am. St. Rep. 395, and cases cited in the cross-reference note thereto. See, too, Doran v. Seattle, 24 Wash, 12, 85 Am. St. Rep. 948, 64 Pac. 230.
One Suing for a Breach of Contract is required to do what he reasonably can to lessen the injury and reduce the damages: Sherman Center Town Co. v. Leonard, 46 Kan. 354, 26 Am. St. Rep. 101, 26 Pac. 717; Wright v. Bank, 110 N. Y. 237, 6 Am. St. Rep. 356, 18 N. E. 79; Milwaukee Boiler Co. v. Duncan, 87 Wis. 120, 41 Am. St. Rep. 33, 58 N. W. 232. That the negligence of the insured does not bar his right to recover on a policy of fire insurance, see Wertheimer-Swarts Shoe Co. v. United States Casualty Co., 172 Mo. 135, 95 Am. St. Rep. 500, 72 S. W. 635.
YOUNG v. SEHON.
[53 W. Va. 127, 44 S. E. 136.] NEGOTIABLE INSTRUMENTS—Indorsement.- Parol Evi. dence is Admissible, as between the immediate parties, to show the circumstances under, and the time at which a negotiable instrument was made. (p. 972.)
NEGOTIABLE INSTRUMENTS Indorsements - Special Agreement Between the Parties.-Any agreement between the parties to a note bearing an irregular indorsement as to the extent of their liability may be shown by parol evidence, and may be enforced as to all who are parties to the agreement. (p. 972.)
BILLS AND NOTES—Non-negotiable-Liability of Indorsers, When Collateral to that of the Maker.--If a non-negotiable promissory note is indorsed first by the payee and next by another person, the undertaking on the part of the indorsers is presumed to be collateral to, and not joint with, the maker. (p. 973.)
BILLS AND NOTES—Non-negotiable Paper - Parol Evidence to Vary.—The rule against the admission of parol evidence to show the consideration, the relation of the parties, and the circumstanees attending the execution of the paper, to the end that the true intent of the parties may be ascertained an:) effected, is not applicable to non-negotiable paper. (p. 983.)
BILLS AND NOTES—Non-negotiable-Maker and Indorsers _Parol Evidence to Show Respective Liabilities of.-If a non-negotiable promissory note is indorsed by the promisee and another in Buch manner as would make them first and second indorsers if the note were negotiable paper, evidence is admissible to show the relation which they bear to one who asserts a liability against them on such note. (p. 984.)
BILLS AND NOTES—Non-negotiable-Maker and Indorsers -When Liable as Joint Parties.—Where a non-negotiable promissory note is drawn up by one person purporting to be payable to another, and is by the latter and another signed on the back as if they were first and second indorsers, for the purpose of procuring moneys for the benefit of the maker, the indorsement being to give bim credit with such person as might accept it and furnish money upon it, the person so furnishing money may elect to hold all the parties as joint promisors, or to treat the indorsers as guarantors. (p. 985.)
Action by Sarah F. Young against Columbus Sehon, J. P. R. B. Smith, and J. N. Camden upon a promissory note which, according to the laws of West Virginia, was non-negotiable because made payable to an unincorporated bank.
John W. English and Rankin Wiley, for the plaintiff in error.
128 POFFENBARGER, J. J. N. Camden and J. P. R. B. Smith complain, on a writ of error, of a judgment rendered against them in the circuit court of Mason county, and in favor
of Sarah F. Young, on a non-negotiable promissory note for one thousand dollars, payable one year after date to the order of said Smith, dated December 12, 1893, and signed on the face thereof by C. Sehon, and on the back thereof, first by J. P. R. B. Smith and then by J. N. Camden.
The trial was by the court in lieu of a jury, and the oral evidence consisted of the testimony of said Smith and James L. Knight. The former testified that the note had been mailed to him from Huntington by Sehon, fully made out with the request that he indorse it, and write a letter to Camden asking him to indorse it, which was done. Upon the return of the note by Camden, Smith took it and went to Knight for the purpose of obtaining the money on it for Sehon. Knight testified that he had in his hands, for the purpose of loaning it, eight hundred and fifty dollars belonging to Mrs. Young, the plaintiff, to which he added one hundred and fifty dollars of his own money, took the note and delivered to Smith his check for one thousand dollars, payable to Sehon, which was sent to him by Smith; and that afterward, on the repayment by Mrs. Young of the one hundred and fifty dollars, he delivered the note to her.
The action was assumpsit against Sehon, Smith and Camden, treating Smith and Camden as original promisors with Sehon for his accommodation and to enable him to obtain upon the note said loan. Plaintiffs in error plead nonassumpsit, and Sehon interposed a special plea, setting up his discharge in bankruptcy, and judgment was rendered against the plaintiffs in error only.
Against this judgment it is urged by the attorney for Smith that plaintiffs in error, by placing their names on the back of the note, became guarantors and could not be sued jointly with the principal debtor, the contract of guaranty being collaterať and binding the guarantor only in the event of the failure of the party owing the debt to pay it and the exercise of due diligence on the 129 part of the holder to collect from him. For Camden it is contended that he and Smith become indorsers or guarantors in the order in which their names are signed on the back of the note.
In the absence of any parol evidence, the note indicates that it was made by Sehon to Smith' by whom it was assigned to Camden. Was parol evidence admissible to show the relation of the parties to the note? “Whatever diversities of interpre