Stultz v. Locke

Bartol, C. J., delivered the opinion of the Court. The appellees, plaintiffs below, were tenants of the •appellant of a certain mill with premises and a tract of ⁵⁶⁴ land belonging thereto, and instituted this suit to recover-damages for the alleged breach by the appellant of his. covenant to keep in repair the mills and machinery, waterpower, and fencing on the premises. The contract between the parties is contained in articles, of agreement, which wqre offered in evidence by the plaintiffs, but the defendant objected that they were inadmissible because of an alleged variance between them and the-contract, set out in the narr. The objection was overruled and the evidence admitted, and the ruling of the Circuit Court forms the subject of the first bill of exceptions.

The contract set out in the narr., is “that the said William Stultz, further agreed to keep the soid mills and' machinery, loater-power, and fencing on the said premises, in good repair, elemental casualties included, in a reasonable time.” The articles of agreement state the contract as follows,. “And the said Stultz further agrees to keep the said mills, and machinery, water-power and fencing on the said premises in as good repair as they now are, elemental casualties included, in a reasonable time.” In the declaration the words “as they now are,” are-omitted, and this omission the appellant contends, is a material and fatal variance. It was decided in Middlekauff vs. Smith, 1 Md., 329, 340 , that the covenant in a lease “ to repair’’ generally or “to keep the premises in repair,” imposes upon the covenantor the legal obligation to keep the premises in as-good repair as tohen the agreement was made. The Court say, ‘ ‘ where an old house is rented with the usual covenants to keep the same in repair, the covenantor will not be bound to put it in an improved state, nor to-avert the consequences of the elements, but only to keep it in a state in which it was at the time of the demise, by timely expenditure of money and care.” Guttridge vs. Maynard, 7 C. & P., 129 ; Archbold’s Law of Landlord and Tenant, 176.” ⁵⁶⁵ It follows that the covenant as stated in the narr., is in Its legal effect the same as that contained in the articles of ■agreement. Or in other words, that a covenant to keep in -repair, and a covenant to keep in as good repair as they now ore, are identically the same covenant.

In pleading it is not necessary to set out the contract in totidem verbis, it is sufficient if it be correctly stated ■according to its legal force and effect. The omitted words being immaterial, in no respect affecting the construction or legal effect of the contract, it was not necessary to set them out in the declaration. We therefore affirm the ruling of the Circuit Court in this exception. The second bill of exceptions was taken to the rejection of •certain evidence offered by the defendant.

In order to dispose of this exception, it is necessary to state the substance of the testimony which had been given in the case. The plaintiffs proved that from the last of September 1874 to the 1st, or 2nd, of April 1875 (during their occupancy under the lease) the supply of water to the mill was defective, because of want of repair on the mill-dam and head-race connected with the mill, and supplying the water necessary to operate the same, and that they sustained damages on account ■ thereof, by means of not being able to operate the same to the same advantage as if there had been a full supply of water; that on or about the 1st or 2nd, of February 1875 the dam was destroyed by an extraordinary flood, and was not repaired or replaced by the •defendant, after receiving notice thereof, before the 1st of April 1875, and the plaintiffs were not able to operate said mill during said period, in consequence thereof, and sustained damage. Evidence was offered tending to prove that the mill had been carried on for fifty years, and that the water-power thereof was supplied by means of a race ■about four hundred yards in length, which intersected the .stream “Pipe Creek,” from which theywater-power to the ⁵⁶⁶ mill was supplied, and that during said time the water to-operate the mill was supplied by means of the race entering the same from the stream directly ; that in 1868, the dam in question was erected at a point in the stream about one hundred and fifty yards above the mill, and about