
    
      Alice Cassidy v. V. Nicholas Varni.
    
    A verdict which has done substantial justice will be allowed to stand, although the jury, in matters which depended upon estimation capable of certainty, have formed a conclusion not exactly conformable to the opinions of witnesses, but not widely different from them.
    
      Before Wardlaw, J. at Charleston, May Term, 1848.
    This was an action of assumpsit, brought to recover damages for the breach of an agreement in writing, which was dated 13th March 1842, and was not sealed, although the draftsman probably intended that it should have been. (See a copy annexed.) By this agreement, in consideration that •plaintiff had discontinued an action of trespass to try titles, and released the damages which might have been recovered therein, the defendant agreed, on a reasonable time after request, to take down and remove a portion of his eastern wall, No. 14 Elliott street, and that portion of the second story of his building which had been placed upon the western wall of plaintiff, and to fix the gutter so as to avoid all leakage.
    Before 1842, the parties owned adjoining houses in Elliott-street, of which the foundations were 14 inches apart, and the eaves of each, 7 inches. The defendant added a story to his building, and in doing this, racked his wall over the whole intervening space of 14 inches, and one half of the thickness of the plaintiff’s wall, so that his upper story rest-'1 ed on the plaintiff’s wall. Although the defendant’s new roof was turned in another direction, and a gutter was provided to carry off the water which ran down the plaintiff’s roof, the water stopped by the wall, overflowed the gutter, and injury was done to the plaintiff’s building, which was serious, and was thought by the workmen who were examined, to be irreparable, whilst the defendant’s wall stood where he had put it. The plaintiff brought an action of trespass to try titles: this was compromised, and the agreement made.
    In 1844, the plaintiff was heard to complain of the injury done to her by the leaking, which the defendant had occasioned, and was seen to go into his house; but there was no direct proof of any notice given to the defendant prior to 1846, when, after a formal demand that defendant should perform his agreement, and refusal by him, this action was brought. The defendant, upon the demand being made, said that he had sold his lot, and referred the plaintiff to Mr. Brown, its present owner. It appeared that Mr. Brown obtained a conveyance of defendant’s lot in January, 1843, and has since been the absolute owner of it — that he had no notice of the agreement prior to 1846, and was never asked to permit the defendant to comply with his agreement.
    For the defendant, it was contended, that by the agreement it was implied that things should remain as they were until notice : that there was no notice before 1846 : that the agreement runs with the land, and binds the present owner, or at any rate was discharged as to the defendant by the sale: — that the performance had become illegal before notice, and that damages must be confined to matters subsequent to the notice; not exceed the cost of necessary repairs, and be proportioned to the sum of $30, mentioned in the agreement— the consideration, as it was insisted, of plaintiff’s conveyance.
    For the plaintiff, damages were claimed sufficient to cover all injury that had been sustained, and to, pull down and rebuild the walls and roofs of both parties, and compensate plaintiff for her land which defendant had taken.1’
    • The Circuit Judge left it to the jury to decide when notice was given — holding, that before it, the plaintiff had no right of action, and that for prior injuries, she could claim no damages.
    He held that the agreement did not run with the land; that if the eaves and half wall, upon which the defendant is said to have trespassed, belonged to the plaintiff before the agreement, they did so still — she not having conveyed them to the defendant; and Brown, if the defendant had conveyed them to him, although an innocent purchaser, had become a trespasser by occupying that for which a bad title had been given to him : that the agreement, notwithstanding the sale, was binding upon the defendant; and that if proper notice had been given, the plaintiff was entitled to recover the direct damages which the non-performance of the agreement had brought upon her. — but that the value of the land, the expense of rebuilding, which the defendant or Brown might be put to, and consequential injuries to the plaintiff, should not enter into the damages, which at most could be only so much as would place the plaintiff in the same situation she would have been in, if the defendant had, upon notice given, taken down the wall and fixed the gutter, as by the agreement he was bound to have done.
    The jury found for the plaintiff $275, a sum not beyond some of the various conjectural estimates that were made of the amount necessary to enable plaintiff to do for herself what the defendant had agreed to do for her.
    The defendant appealed, on the ground that the damages were excessive and not warranted by the evidence.
    
      Pressly, for the motion.
    
      Northrop, contra.
    COPY OP AGREEMENT.
    These presents, made 30th March, A. D. 1842. In consideration of discontinuance of an action of Alice Cassidy against him, to try title, and for damages concerning an alleged trespass on her lot in Elliott-street, and release and discharge of right and cause of action and all actions, suits and claim therefor, from her to me, Nicholas Varni, — I hereby grant, agree, and bind myself and my heirs and assigns to her, said A. Cassidy, heirs and assigns, which covenant is hereby entered into between myself, 'my heirs, executors, administrators ■and assigns, and her heirs, executors, administrators, and assigns, to the following effect — that I shall and will, in reasonable time, after request and demand made to that, by her other attorney, heirs and assigns, take down and remove the portion of the eastern wall, being portion of the second story ■of certain kitchen and building, on my lot, Elliott-street, which obtrudes upon and is placed and built upon the western wall of the kitchen or out-building adjoining thereto, being on the said lot of the said Mrs. Cassidy, next door to his lot, and have gutters so fixed as to avoid and prevent all leakage. Mrs. Cassidy having also received thirty and ten dollars for costs.
    Witness my hand and seal, day and year aforesaid.
    Signed, N. Yab.ni.
    
      Witness,
    
    T. O. Elliott,
    Rd. Hogan.
    
      3 Stat. 612. 1 Rich. 476.
   Wardlaw, J.

delivered the opinion of the Court.

Whatever might have been the effect of a covenant made in the words of this agreement, it is plain that the agreement, ¡not being under seal, did not run with the land: and that the defendant did not, by his sale to Brown, discharge or shift the duty of performing it.

As to the damages, the jury received instructions of which the plaintiff does not complain, and which were not injurious to him; but it is supposed that the jury found too much. It is said that to take down the wall which was wrongfully placed upon the plaintiff’s land, and fix the gutter, so as to reinstate the plaintiff in possession of all that she had before the trespass upon her rights, would, according to an estimate in writing made by her own surveyor, a competent person, take only $90: — that the jury in going beyond that sum, have undertaken to settle the whole matter, by paying her the price of her land which the defendant took, and allowing her enough to build up the defendant’s wall again, after removing itfromher’s: — and that all this she may retain, and still either pull down the wall, or sue the vendee of defendant, and yet not contribute at all towards re-building. The Court cannot, however, know upon what grounds the jury proceeded. Even if the views taken on the Circuit, of the ulterior rights of persons concerned, be correct, the jury may have taken into their estimate the rent lost and other direct damage which the plaintiff sustained from the defendant’s refusal to perform his agreement. In this view the verdict should be allowed to stand, which has done substantial justice, although the jury, in matters which depended upon estimation capable of certainty, have formed a conclusion not exactly conformable to the opinions of witnesses, but not widely different from them.

It is not, however, at all clear, that if the jury undertook to settle rights as has been supposed, they did not do right. The plaintiff let fall her action of trespass to try titles, and without renewing it, delayed more than two years. All her right of action for the land then sued for, and since then out of her possession, may, by our statute of 1744, be barred, and the defendant may have no further reason to dread her action against his vendee for trespass, or against himself on his agreement. In this view the statements made at the bar would seem not to consider the plaintiff’s recovery at all excessive. This estimation can of course decide no rights not now before the Court, but it is made to counteract any effect which the view of the plaintiff’s further rights, taken on the Circuit, might have in producing new litigation.

The motion is dismissed.

The whole Court concurred.

Motion refused.  