Maguire for the use of Kane versus Howard

The, opinion of the court was delivered,

by Read, J.

The plaintiffs below, who are the plaintiffs in error, being the owners of a tract of land near the city of Pittsburgh, sold to certain persons the coal under this land, and afterwards, on the 5th August 1854, sold the same tract to the defendant. On it was a dwelling-house with a well of water adjacent to it, and as the strata of coal lay about fifty feet below the bottom of this well (which was only thirty-four feet deep), it was liable to be drained by the mining of the coal, in which event the well would require to be sunk to a sufficient depth below the coal to obtain water.

The defendant gave the plaintiffs several bonds and a mortgage to secure the balance of the purchase-money. Two of the bonds bearing date 5th August 1854, for $411.75 each, were made payable respectively, in three and four years from date thereof, and each contained in the condition the following clause : “ This bond being bound for the sinking of a well below the coal or otherwise, to obtain water permanently, for all family purposes, provided the same to be necessary by reason of a failure of water in the well now dug, within two years; said well to be dug on the tract purchased by said Howard from said Maguire.”

It was proved, on the trial of this suit, which was on the last bond falling due in 1858, that the well failed and became dry in the autumn of 1854, and that the plaintiffs had notice of it. But no attempt was made at any time, by the plaintiffs, to dig the well deeper or to dig a new one. It was also proved that the defendant had expended a sum greater than the amount of this bond, in extending the well down below the strata of coal, with a view to obtaining water, and that the well was not completed.

On the 26th November 1859, the following paper was served on the defendant by the plaintiffs after suit brought:—

“ Pittsburgh, November 26th 1859.

I will agree to dig a well on Mr. W. J. Howard’s place, the place which he bought from W. A. & J. C. Magure, for $75, at the out-crop of the coal, and will guaranty said well for two years, for all family purposes.

Henry Kane.”

It was proved that the “ out-crop” of the coal was at a distance from the house and from the old well, and so far down the hill as to be 80 or 100 feet below the house, and that a well at that point would be so inconvenient as to be of no use.

The plaintiffs presented six points upon which they requested the court to charge, and the errors assigned are the answers of the court to all but to the sixth point, which was affirmed.

The answer to the fourth point, which related to the so called notice of the 26th November 1859, is supported by the testimony just stated. The court say in reply to this point, “according to the testimony of the witnesses, the place designated by the plaintiffs was some 450 feet from the house and old well, and according to the testimony of another, it would be some 80 or 100 feet lower than the house, and, according to the uncontradicted testimony of Mr. Minick, where the water could not he used for family purposes. He states he would not rent the property at all, if he had to bring the water from that point. If these facts be so, the offer would not amount to a compliance with the bond.” There is clearly no error in this, and the verdict of the jury established these facts to be true.

The plaintiffs’ fifth point went upon the hypothesis, that the damage sustained by the defendant must be divided equally between the first bond and the last bond, and as the amount of the first bond had been received by the plaintiffs, they could only be liable for the other half, which singular proposition would give one-half of the injury they had committed, and its corresponding compensation, to the party who had inflicted it. The court negatived this statement of the law.

The first three points were answered properly in the negative, and the court were so clearly right that it would be waste of time to discuss them.

Judgment affirmed.

Concurring opinion by

Woodward, J.

The condition so awkwardly expressed in the bond amounts, after acceptance by the vendors, to a guarantee on their part that the well of water on the premises shall not fail the vendee. This does not seem to be disputed, but it is said the vendee is not entitled to enforce the condition of the bond because he bought with full knowledge that the coal in the land had been previously granted to another, and if the well was exhausted by this cause, it is argued that he has no right-to complain.

But the vendors, when they accepted bonds with such conditions in them, knew also as well as the vendee, that the coal right had been previously sold, and that it was liable to destroy the well. The condition is broad and general enough to embrace a failure of water from the mining of the underlying coal. If the water failed from that cause there was breach of the condition. If the plaintiffs meant to exclude that cause of failure they should have said so. Having accepted the bond in language large enough to embrace a failure of water from whatever cause, they are very clearly liable to respond in damages when the failure took place from a cause which they could not fail to have anticipated, because created by their own prior conveyance of the coal right.

The third and fourth points made by the plaintiffs were so satisfactorily answered in the short extract that is given from the charge of the court, that we can add nothing to it without weakening it.

There was nothing in the fifth point to merit an affirmative answer. The condition was intended to secure the benefits of a well on the premises purchased. Without that guarantee on the part of the vendors, they would not probably have found a purchaser in the defendant. He has a right to enforce their guarantee whether contained in one bond or two. If he has paid all the purchase-money except the last bond, his right of set-off against that bond is all the more equitable.