Lee v. J. M. Harper & Co.

Court of Appeals of Kentucky

Lee v. J. M. Harper & Co.

3 Ky. Op. 526, 1870 Ky. LEXIS 180

DecidedFebruary 21, 1870

StatusPublished

This text of 3 Ky. Op. 526 (Lee v. J. M. Harper & Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lee v. J. M. Harper & Co., 3 Ky. Op. 526, 1870 Ky. LEXIS 180 (Ky. Ct. App. 1870).

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Opinion

Opinion of the Court by

Judge Williams:

Appellees having obtained from appellant permission to run his mill race through the latter’s land executed to him a covenant to compensate him “for any damages that said race may cause to said land,” and in case the parties, concerned cannot agree as [527]*527to the value of the land damaged by said race and mill, each were to select an arbitrator, and in case of disagreement they to select a third umpire, and these were to ascertain the damages, and the partis were to abide their award.

Bullock, for appellant. Lindsay, for appellee.

The parties did select each a man who awarded to Lee two hundred dollars and wrote their award on the back of said covenant. Harper & Co. not paying, Lee brought this action, setting up the covenant and award with protest of both and an averment that each had selected an arbitrator who had made their written award on the back of the covenant and that the defendants had due notice thereof.

To this petition and amendment the court sustained a demurrer.

There is now but one form of action, that by petition, and when a cause of action is set out, to sustain a demurrer is erroneous.

This writing covenanted that the defendants would compensate the plaintiff for the damage to his land by running their mill race through it,- and provided a means of ascertaining the amount alternately, that is, by the agreement of the parties or by arbitration, the ascertainment of these damages, however, either way did not perform the covenant to compensate, that could only be done by payment; the award only made certain the amount of damages. It was, therefore, proper to set out the covenant and the award, the one to show the demand, the other to show the amount.

The averment of due notice of the award is sufficient.

The petition and amendment sets out a good cause of action and their dismissal upon demurrer was erroneous and the judgment is • reversed for further proceedings.

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Opinion of the Court by

Judge Williams:

Appellees having obtained from appellant permission to run his mill race through the latter’s land executed to him a covenant to compensate him “for any damages that said race may cause to said land,” and in case the parties, concerned cannot agree as [527]*527to the value of the land damaged by said race and mill, each were to select an arbitrator, and in case of disagreement they to select a third umpire, and these were to ascertain the damages, and the partis were to abide their award.

Bullock, for appellant. Lindsay, for appellee.

The parties did select each a man who awarded to Lee two hundred dollars and wrote their award on the back of said covenant. Harper & Co. not paying, Lee brought this action, setting up the covenant and award with protest of both and an averment that each had selected an arbitrator who had made their written award on the back of the covenant and that the defendants had due notice thereof.

To this petition and amendment the court sustained a demurrer.

There is now but one form of action, that by petition, and when a cause of action is set out, to sustain a demurrer is erroneous.

This writing covenanted that the defendants would compensate the plaintiff for the damage to his land by running their mill race through it,- and provided a means of ascertaining the amount alternately, that is, by the agreement of the parties or by arbitration, the ascertainment of these damages, however, either way did not perform the covenant to compensate, that could only be done by payment; the award only made certain the amount of damages. It was, therefore, proper to set out the covenant and the award, the one to show the demand, the other to show the amount.

The averment of due notice of the award is sufficient.

The petition and amendment sets out a good cause of action and their dismissal upon demurrer was erroneous and the judgment is • reversed for further proceedings.

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Bluebook (online)

3 Ky. Op. 526, 1870 Ky. LEXIS 180, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lee-v-j-m-harper-co-kyctapp-1870.