Manning v. Fitch

138 Mass. 273, 1885 Mass. LEXIS 167

• Court: Massachusetts Supreme Judicial Court
• Decided: January 12, 1885
• Status: Published

Opinion

Holmes, J.

1. The defendant’s covenant with the plaintiff, not to demand payment of the principal of his mortgage note, nor to begin any proceedings for foreclosure of the mortgage, and not to eject the defendant from the mortgaged land for three years, fairly construed, meant more than a covenant against these acts on the part of the defendant personally. It could not be rendered nugatory by an assignment, but was broken when the defendant’s assignee sold under the power in the mortgage. This construction is confirmed by the plaintiff’s covenant to expend the hay and fodder produced upon the land for the use of the land for three years. The ruling on this point was right.

2. The plaintiff’s covenant just mentioned did not require him to raise any particular amount of hay and fodder, but only to use what was raised in a certain way, so as not to exhaust the farm. The question whether as much was raised as the farm was capable of producing in the usual course of husbandry, or as was usual on like farms in the neighborhood, was rightly excluded for this reason, as well as because the defendant’s covenant was independent.

8. The plaintiff was allowed to testify what the farm was worth to him from June 1, 1882, to July, 1883, with his stock of cows; and the defendant excepted. Generally speaking, such a question is objectionable. But, in view of the argument, and all the circumstances, we assume that it was understood to mean simply, What was the money value of the farm to one engaged in your special business, and in your general position with regard to it? And so understood, we cannot say, on the bill of exceptions, that it was improper. It does not appear what rule of damages was laid down to the jury; but, assuming that they were allowed to adopt the standard suggested by the question and answer, still we cannot say from anything that appeal’s in the bill of exceptions that the defendant’s contract was not madte in express contemplation of the plaintiff’s use of the farm as a milk farm. If there was no such evidence, it was for the defendant to disclose the fact in his bill of exceptions. It would rather seem that the plaintiff was using the farm in that way at the time the contract was made; that the defendant knew that fact; and that the contract was made for the very purpose of preventing the breaking up of the plaintiff’s business, according to the understanding of both parties. In that case, at least, the evidence was admissible. Townsend v. Nickerson Wharf Co. 117 Mass. 501, 503. See Hydraulic Engineering Co. v. McHaffie, 4 Q. B. D. 670; Bartlett v. Greenleaf 11 Gray, 98, 102. In Goddard v. Barnard, 16 Gray, 205, where special damage was disallowed for breach of a contract that a roof should be tight for five years, and in default to make the same satisfactory, the decision was put on the ground that the language of the contract itself showed that the only liability contemplated for leaking was the cost of a satisfactory roof, and that the circumstances, including the fact that it was known to be an experiment, confirmed the literal import of the words.

Exceptions overruled.