Lucente v. Davis

Fowler, J., delivered the opinion of the Court. This is an action to recover damages for an alleged breach of a covenant contained in a lease under seal from Charles C. Davis to Panfilo Lucente. . The narr. alleges that the plaintiff, Lucente, made a written contract with the defendant, Davis, whereby the latter leased to the former one-half acre of land, being a part-of defendant’s ⁵²⁷ farm in Allegany County, for the term of one year with the privilege of two, at a rental of twenty-five dollars per annum, for the purpose of running a commissary thereon to supply laborers on the Wabash Railroad and others with merchandise; that in said lease the defendant covenanted under seal with the plaintiff not to lease or rent any other part of said farm to any person for running a commissary or selling whiskey or beer; that the plaintiff commenced the said business with said laborers and acquired a profitable trade with them and others which continued until the defendant broke his said covenant and leased a part of his said farm to Michael Elmore for the purpose of starting a commissary thereon; that said Elmore began and continued said business in competition with the plaintiff’s business to the damage of the plaintiff Wherefore he brought this suit to recover damages for the loss thus sustained and caused by defendant’s breach of his said covenant. To this narr. the defendant pleaded inadvertently, the general issue plea in case that he did not commit the wrong alleged; and upon this state of the pleadings the case was tried below.

At the conclusion of the plaintiff’s testimony the jury were instructed to find a verdict for defendant on the ground that under the pleadings and evidence there was no legally sufficient evidence to entitle the plaintiff to recover. To the granting of this prayer the plaintiff excepted, and the verdict and judgment being against him he has appealed. There is no other exception presented by the record. Neither in the Court below nor in this Court was any question made by counsel in regard to the correctness of the pleading.

The pleadings appear to have been assumed to be free from error, and the whole contention was that, without regard to the pleadings (although the instruction does in fact challenge their correctness), the evidence was not legally sufficient to warrant a verdict for the plaintiff. I. We will first determine the propriety of the Court’s ruling by a consideration of the evidence alone, omitting for the present any reference to the pleading. To sustain his case the plaintiff offered the lease under seal ⁵²⁸ containing the covenant already referred to, and testified in his own behalf among other things