
    *Chapman v. Ross.
    August, 1841,
    Lewisburg.
    (Absent Cabell and Brooke, J.)
    Contract of Indemnity — Case at Bar. — One Alexander devised land and mill seat to Ross, on condition that he should pay Chapman 250 dollars; Ross, apprehending the mill seat would be overflowed by a dam 11 feet 6 inches high which Summers claimed right to build on the stream below, refused to accept the land and mill seat devised to him and to pay the 250 dollars, unless Chapman would indemnify him against injury to mills he proposed to build, from the erection by Summers of sucha dam below; and this being communicated to Chapman, he said, Summers had no right to erect such dam, and if Ross would accept the devise and pay the 250 dollars, he would indemnify Ross against all injury he should sustain from the erection of such a dam by Summers; whereupon, Ross accepts the devise, pays the 250 dollars, and builds mills at the mill seat to him devised, and then Summers builds his dam, and the waters overflow Ross’s mill seat whereby his works are of no value. In assumpsit by Ross against Chapman, on the contract of indemnity, Held,—
    1. Same — Consideration.--That the declaration setting out such a contract, shews sufficient consideration to support the promise to indemnify.
    2. Same — Statute of Frauds. — That the contract is not within the statute of frauds, and, though merely verbal, is valid and binding.
    3 Same — Notice of Injury. — That it is not necessary to allege in the declaration, notice to defendant of injury resulting from Summers’s dam.
    4. Same — Evidence . — That to entitle Ross to recover, it is essential he should prove that Summers had lawful right to erect his dam.
    Assumpsit on special contract, brought by Ross against Chapman, in the circuit superior court of Monroe. The declaration contained five counts.
    1. The first count alleged, that the defendant Henley Chapman and one John ■Chapman having sold to Matthew Alexander a parcel of land lying on Second Creek in the county of Monroe, Alexander, having sold part of the land to his son James, reserving the residue thereof on which there was a valuable mill seat and water power, by his will devised the residue, on which *was the mill seat, to the plaintiff Ross, upon condition that he should pay 250 dollars to Henley and John Chapman, for which Alexander was bound. And Ross, apprehending that the mill seat might be rendered valueless, by the exercise of a privilege, supposed to exist in one Summers, to erect a dam 11 feet 6 inches high on the stream below, declined to pay the 250 dollars, unless the defendant Henley Chapman would indemnify him against all injury he might sustain in any machinery he might erect at the fall on the land devised to him, if Summers should have and exercise the right of erecting his dam 11 feet 6 inches high, and that dam, when erected, should injure Ross’s machinery. And, thereupon, it was agreed between the plaintiff Itafb and the defendant Hen1ejr Chapman, that if Ross would pay the 250 dollars, Henley would indemnify and remunerate Ross for any injury that should result from the exercise of the real or supposed right of Summers to build a dam across the stream below, whereby Ross’s machinery and waterpower should be impaired in value. And Ross, trusting to Chapman’s promise of indemnity, paid the 250 dollars, and erected mills at the water fall on the land devised to him, of the value of 2000 dollars. And that Summers proceeded, rightfully and lawfully, to erect a dam on the stream below, not more than 11 feet 6 inches high, whereby a reflux of the waters was produced, which drowned the wheels of Ross’s mills, and rendered his machinery useless, so that Ross had been compelled to abandon his mills and mill seat, and so had lost his whole machinery, and all profit from the same. 2. The second count alleged that Alexander devised to Ross a parcel of land lying on Second Creek in Monroe, on which there was a valuable mill seat, on condition, that Ross should pay Henley and John Chapman 250 dollars, for which Alexander was bound; and that Ross, apprehending that the land and mill seat might be rendered of little or no value by the exercise of an acknowledged *right on the part of one Summers to erect a mill dam of a certain height on the stream below, which might overflow the fall on the land so devised to Ross, and any machinery he might put there, refused to pajr the 250 dollars, unless the defendant Henley Chapman would agree to indemnify him against all injury which might result to his mill seat and machinery, from the dam of Summers, should he afterwards exercise the right, real or pretended, of erecting a dam below of a certain height. And thereupon, it was agreed between Ross and Chapman, that Ross should pay the 250 dollars, and that Chapman would indemnifj' him against all injury which should result to him from the reflux of the waters from Summers’s dam on any machinery that, Ross should erect at the mill seat on the land devised to him. And under this agreement, Ross paid the 250 dollars, and built mills at the mill seat on the land devised to him, of the value of 2000 dollars. And Summers erected a mill dam below, as he lawfully might, which dammed back the waters on Ross’s mill seat, and drowned his wheels and machinery, so that they were of no value, and Ross was compelled to abandon them &c. 3. The third count alleged, that in consideration that Ross would pay Henley and John Chapman 250 dollars, Henley agreed to indemnify him against any injury that might result to certain machinery which he proposed to build on Second Creek in Monroe, from the reflux of the waters to be caused by a mill dam which it was supposed one Summers intended to build on the stream below, not more than 11 feet 6 inches high. And Ross, trusting to Chapman’s promise and agreement, erected valuable mills and machinery on the stream, and well and truly performed the agreement on his part, by paying the 250 dollars. And Summers erected a dam on the stream below, at a place where his old dam stood, not more than 11 feet 6 inches high, which caused a reflux of the waters, whereby the mill wheels of *Ross’s mills were drowned, so that they were of no value, and he had been compelled to abandon them &c. 4. The fourth count alleged, that Matthew Alexander having devised to Ross a parcel of land on Second Creek in Monroe, which he had reserved to himself out of the purchase of a larger parcel by him and James Alexander from John and Henley Chapman, on which parcel so devised to-Ross, there was a mill seat which constituted its chief value; and having devised the same to Ross upon condition that he should pay to the Chapmans 2S0 dollars, being, one half of the amount due from Matthew and James Alexander; and Ross considering the land so devised to him of little or no value, except for machinery, and desiring to erect machinery thereon, and being informed that one Summers asserted a right to erect a dam 11 feet 9 inches high on the stream below; therefore, he declined to accept the devise so made to him, and to become responsible for the 250 dollars, unless he should be indemnified and saved harmless from injury to his machinery, to be caused by the exercise of the right claimed by Summers to erect a dam 11 feet 6 inches high on the stream below, and the consequent reflux of the waters. Whereupon, at the special instance and request of the defendant Henley Chapman, it was agreed between Ross and Henley, that if Ross would accept the devise made to him in the will of Alexander, and would pay the 250 dollars, he Henley would indemnify Ross, and save him harmless, from all injury which might result to the mills and machinery he intended to build, from the damming up of the waters of the stream by Summers, provided Summers’s dam should not be more than 11 feet 6 inches high. And Ross, under the agreement and trusting to the promise of Chapman, accepted the devise, undertook to pay the 250 dollars, and had actually paid all but 33 dollars for which he had given his note. And Ross proceeded to build mills at the mill seat on the land *devised to him, which had cost him, and were worth, 1500 dollars. And Summers erected a dam below not more than 11 feet 6 inches high, which caused a reflux of the waters, which overflowed and drowned Ross’s mill wheels and rendered his mills of no value, whereby Ross lost his machinery, labour and cost in the erection, and all profits therefrom. 5. The fifth count was like the fourth; only it alleged, that Chapman’s agreement was to indemnify Ross against injury from the exercise by Summers of his real or supposed right to erect a dam 11 feet 6 inches high on the stream below, and that Ross had bound himself for (not that he had actually paid) the 250 dollars to the Chapmans. Yet the defendant, not regarding his .several promises and agreements, though often requested, had hitherto, and still, failed and refused to indemnify Ross &c.
    Chapman demurred generally to each count of the declaration, and pleaded non-assumpsit, and non assumpsit within five years. Ross joined in the demurrer, and took issue on the pleas. The court overruled the demurrer, and there was a trial of the issues.
    At the trial, Chapman moved three instructions to the jury, one of which the court gave with a modification, and refused to give the others; and Chapman excepted; but it is unnecessary to state the exception, since this court did not decide the points therein stated.
    The jury found a verdict for Ross, for 734 dollars. Chapman moved the court to set it aside, and to direct a new trial, on two grounds, that the verdict was contrary to evidence, and if not, that the damages were excessive. The court thought the damages too high, and Ross released 234 dollars of them; upon which the court refused the new trial. Chapman filed a bill of exceptions, stating the facts proved at the trial.
    It appeared by the bill of exceptions, that proof was made, that John and Henley Chapman sold Matthew Alexander a parcel of land lying on Second Creek in *Monroe, and gave him a bond with condition to convey the title, which they afterwards conveyed: that the purchase money to be paid was 3000 dollars ; of which 2500 dollars was paid, and Matthew and James Alexander gave their joint bonds for 500 dollars, and James Alexander paid 250 dollars, leaving 250 dollars to be paid by Matthew, who died in 1825, without having paid the same. James Alexander met with Henley Chapman, and told him, that Matthew had devised a part of the land to Ross (being that part on which Matthew had intended to erect mills) upon condition that Ross should pay the 250 dollars; and that Ross, having understood, that Summers had the right to erect a dam 11 feet 6 inches high, on the stream below, which, he was apprehensive, would overflow the machinery should he erect mills on the land devised to him at the place contemplated, had refused to accept the devise, unless Chapman, would agree to indemnify him against any injury which might result to his machinery when erected, by reason of Summers’s dam on the stream below; upon which Chapman told him, that Summers had no such right, and that there should be no difficulty on that account, for that he would indemnify Ross against any injury he might sustain by reason of the reflux of the waters caused by Summers erecting his dam of that height, if Ross would accept the devise, and pay the 250 dollars. And this promise of Chapman was repeated on another dajr. In consequence of which, Ross accepted the devise, paid the 250 dollars, and built his mills, the wheels of which were afterwards overflowed by the reflux of the waters caused by Summers’s dam. But there was no proof, that Summers was authorized by law to erect his dam on the stream below Ross’s mill seat, or that Summers’s mill was legally established.
    The court gave judgment for Ross for 500 dollars; and this court, upon the petition of Chapman, allowed him a super-sedeas.
    *1# Comas, for the plaintiff in .error,
    
      submitted the question upon the demurrers to the declaration, to the court; objecting, that no consideration was laid, to support the agreement which Chapman was alleged to have made; and that the agreement alleged, being merely verbal, it was void by the statute of frauds, whereby it was provided, that no action shall be brought to charge any person upon any agreement for the sale of any lands, tenements of hereditaments — or upon any agreement which is not to be performed within •one year from the making thereof--unless the promise or agreement, or some memorandum or note thereof, shall be in writing &c. 1 Rev. Code, ch. 101, | 1, p. 372. The agreement in this case, ran with the land, and defended the enjoyment of it; and it •was to be performed at any distant day, when Summers should build his mill dam. Besides, the declaration did not aver notice to Chapman, that Summers had erected his 4am, and that the reflux of the waters caused by the same, obstructed Ross’s works. But his main objection was, that there was no proof, that Summers had lawful right to erect his dam, and therefore, the circuit superior court erred in overruling the motion for a new trial. It was impossible to suppose that Chapman contracted, or meant to contract, to indemnify Ross against the tortious acts of Summers.
    Preston, for the defendant in error,
    said the demurrers were rightly overruled. As to consideration, the declaration alleged, that Chapman’s agreement to indemnify Ross against loss by reason of Summers’s dam, induced him to accept Alexander’s devise of the land to him, and to pay the 250 dollars, which, unless he accepted the devise, he was nowise bound to pay; and that, upon the faith of that indemnity, he proceeded to build his mills, and had lost all benefit from them. “Damage to the promisee constitutes as good a consideration as benefit to the promisor.” Townley v. Sumral, 2 Peters 170, 182. As to the statute of frauds, he *said, this was not an agreement which ran with the land, but was a personal contract between the parties; nor was it an agreement which was, by its terms, not to be performed within one year. It was to be performed whenever Summers should erect his dam, and thereby cause the mischief to Ross’s mills, which Summers might have done within the year. Fenton v. Fmblers ex’or of May, 2 Burr. 1278. It was not necessary to aver notice to Chapman of the injury to Ross’s mills caused by the erection of Summers’s dam; Austin v. Richardson, 3 Call 302. For the rest, the contract between Ross and Chapman, was, that if Summers should build his dam, and thereby cause a reflux of the waters which should obstruct Ross’s works, whether Summers should have a legal right to erect such a dam or not, Chapman should indemnify Ross. Both parties assumed that Summers had or claimed a right to build his dam 11 feet 6 inches high, and upon the supposition that he had, Chapman agreed to indemnify Ross against the consequences.
   PFR CURIAM.

The circuit superior court erred in refusing to grant a new trial. The verdict of the jury was not sustained or justified by the evidence. The promise of indemnity, on Chapman’s part, was, upon a fair construction of the evidence, nothing more than an indemnity against the lawful acts of Summers. Ross’s redress for Summers’s unlawful acts was against Summers himself. Chapman neither undertook, nor did Ross receive his promise as an undertaking, to defend him against the tortious acts of Summers. Under this view of the contract, it was incumbent on Ross to shew, that the act of Summers whereby he sustained injurj', was not a tortious but a lawful act; that Summers had a lawful right to erect his dam 11 feet 6 inches high, and that so Chapman was liable on his assumpsit to indemnify him against the injury sustained by the exercise ':;'of such lawful right. But it is expressly stated, that no such evidence was exhibited to the jury; so that their verdict was not sustained by the evidence. This court, (not deeming it necessary, in this aspect of the case, to decide upon the questions raised by the motion to instruct) is of opinion, that a new trial should have been granted.

Judgment reversed, and cause remanded for a new trial.  