#### Wray *versus*Lemon.

1. Wray owned a lease of a house, etc., for a term of years; he sold it to Lemon and agreed “to refund to (him) such sum of money as may be recovered from (Lemon) by means of any suit at law brought against him for and on account of his purchase of said leasehold.” *Held,*that the intent of the covenant was to protect Lemon against the results of a recovery which would deprive him of the fruits of his purchase.

2. A recovery in ejectment was had against Lemon by the original lessors, and in order to remain Lemon agreed to tafee á new lease from them at an increased rent. *Held,*that Lemon could recover from Wray for the increase.

3. If Lemon voluntarily took the new lease and agreed to pay the extra rent merely to avoid vexation and trouble, he could not recover. *Per White, J.*

4. Upon the recovery in ejectment against Lemon, Wray offered to be at the expense of carrying the case to the Supreme Court and of conducting it there, to furnish the bail in error, etc. Lemon refused to remove it. He was not bound to remove the case if he refused in good faith; but if he did it because he was tired of litigation and to make peace with the plaintiff in ejectment he was guilty of neglect and could not íecover. *Id.*

5. The omission of Lemon to consult with Wray before making a new lease with the original lessors was not a bar to his recovery, but he was bound to make the best terms he could for the new lease.

October —-, 1875.

Before Agnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson, and Woodward, JJ.

Error to the Court of Common Pleas of *Allegheny*County, No. 2. Of October and November Term, No. 67.

This was an action of covenant, brought October 25th, 1873, by William W. Lemon against James T. Wray. The case was tried November 9th, 1874, before White, J.

The action was founded on an agreement, dated February 15th, 1872, between Wray, the defendant, and Lemon, the plaintiff'.

The agreement recited that Wray had on that day conveyed to Lemon all his (Wray’s) right in a leasehold of a house in Pittsburgh, with certain fixtures, for $2300, — the lease continuing for somewhat more than four years, — subject *274to the annual rent of $1200, payable to E. C. Eulton and Margaret Eulton, his wife, and Jane M. Dilworth. Then followed the covenant on which this suit was brought, viz.:

“ Now this agreement witnesseth that said J. T. Wray doth bind himself to refund to said party of the second part such sum or sums of money as may be recovered from said party of the second part by means of any suit or suits at law brought against him for and on account of his purchase of said leasehold and fixtures. Provided, that in no event shall the sum or sums of money so refunded exceed the said sum of twenty-three hundred dollars, less such proportion thereof for the time said party of the second part shall have had possession of said premises.”

The premises belonged to Mrs. Fulton and Mrs. Dilworth, as tenants in common. In 1871, Eulton and wife and Mrs. Dilworth made a lease of them, to C. A. Boucher for five years, at a rent of $1200 per annum. The lease was not acknowledged by Mrs. Eulton as a married woman. Not long afterwards Boucher“went into bankruptcy, and afterwards his interest in the lease was sold by the sheriff and purchased by Wray; he then sold his interest in it to Lemon by the agreemént above given.

There was evidence that at the time the agreement was made between Wray and Lemon, the only matter of doubt suggested as to Wray’s title was the fact that the sale had been made by the sheriff after the bankruptcy ; that nothing was said about a defect on account of the want of Mrs. Fulton’s separate acknowledgment. Mrs. Eulton afterwards brought an ejectment against Lemon to recover her undivided half; Wray assisted in defending this suit. A recovery was had by Mrs. Fulton. Wray requested Lemon to ’ remove the record to the Supreme Court, offering to provide the bail in error, and to pay the expenses, etc. Lemon declined to do so; amongst other objections he spoke of the difficulty of making the affidavit for removal. A habere facias on the judgment in ejectment was issued and served on Lemon, who did not ,go out of possession ; he paid the costs in the ejectment. Afterwards Lemon, in order to remain in possession, entered into a new lease with Mr. and Mrs. Eulton and Mrs. Dilworth at $1800'per annum instead of $ 1200. Mrs. Eulton executed the lease without a separate acknowledgment, as she had done in the lease to Boucher. This lease was made without consultation with Wray or notice to him. The plaintiff' testified that at the time of the commencement of the suit he had paid $969.10 additional, and he claimed to recover that amount.

The plaintiff’s point, which was affirmed, was:

*275“ If the jury believe that William H. Lemon, the plaintiff, was deprived of the possession and enjoyment of Mrs. Fulton’s individual half of the property, under the lease of the same purchased by Lemon, the plaintiff, from Wray, the defendant, by means of the verdict and judgment in ejectment against him at No. 578, April Term, 1872, and was by means of that action compelled to pay $600 additional rent per year to regain and enjoy possession thereof, then and in such case the increased rent is within the meaning of the covenant to refund sued on, and the plaintiff is entitled to recover whatever amount of additional rent he paid by means thereof, up to the bringing of this suit.”

The defendant’s points and their answers are as follows:

“ 1. If the jury believe that the covenant of Wray to refund to Lemon certain moneys, was entered into by the parties only in reference to and contemplation of the effect, etc., of the sheriff’s sale and Boucher’s bankruptcy upon the leasehold, and that a suit by Mrs. Fulton for possession of her undivided half was never spoken of between the parties, and never in their contemplation at the time of making the agreement sued upon, then their verdict must be for defendant.”

Answer: “ Affirmed.”

“ 2. The defendant, Wray, is bound to pay such sum or sums of money as may have been recovered from said Lemon by means of suit or suits at law brought against him for and on account of his purchase of said leasehold and fixtures. Now if they find the only moneys recovered as aforesaid to have been $20.06, then their verdict will be for that amount, and they will *not consider*the amount of the increased rent paid by Lemon to the Fultons and Mrs. Dilworth as a recovery under the covenant of agreement sued upon.”

Answer: “ Refused, but explained more fully in the general charge.”

“3. If the jury believe that Wray requested Lemon repeatedly before a writ of possessioñ was issued in the ejectment suit to take a writ of error, he, Wray, agreeing to pay all expenses and costs of taking the case to the Supreme Court, and furnishing the bail for that purpose, and that Lemon refused to do so, and without the knowledge of Wray quietly made his peace and a new lease with his landlords, then he cannot recover in this suit.”

Answer: “Affirmed, unless the jury find from the evidence that Lemon refused to sue out a writ in good faith because his counsel advised him against it, and he could not conscientiously make the affidavit.”

*276“ 4. Even if the Court should be of the opinion, and should so instruct the jury, that Wray was liable under his covenant for the increased rent paid by Lemon, then he is only liable for one-half of the increase.”

Answer: “ If the increase waá for the benefit of both Mrs. Eulto'n and Mrs. Lilworth, then the plaintiff’ could only recover the one-half.”

“5. Under the evidence the new lease made by Lemon was a voluntary matter on his part, and he cannot recover for any increased rent that he thereby agreed to pay.”

Answer: “ Refused.”

“ 6. If the delivery of possession by the sheriff’ was nothing more than a constructive delivery or a paper delivery, and that Lemon was never out of the peaceable possession, enjoyment, and occupancy of the whole premises, then the additional moneys paid to continue such possession and pacify the landlords are not recoverable in this suit.”

Answer: “ Affirmed, but explained more fully in the general charge.”

The Court charged:

“ . . . The defendant resists the claim on several grounds, amongst which are these:

“ 1. The covenant does not cover such a claim as this.

“ 2. That the plaintiff was never actually turned out of possession, but voluntarily took a new lease of the premises from the owners.

“ 3. That he refused to take a writ of error in the ejectment suit, thereby preventing the defendant from having that case heard in the Supreme Court.

“ 4. That the plaintiff took the new lease without notice to defendant.

“. . . . The covenant is rather singularly worded. In some of its terms it is very general, while in others it seems to be restricted. It provides that Wray shall refund to Lemon ‘ such sum or sums of money as may be *recovered*’ from him ‘ by means of any suit or suits at law brought against him for and on account of his purchase of said leasehold and fixtures.’ The doubt or uncertainty hangs upon the meaning of the word ‘ recovered.’ In its common legal sense it refers to the *judgment*obtained by one party against the other, and in this case it is contended it embraces only the sum or sums of money recovered by such a judgment against Lemon, for or on account of his purchase of the lease. If that be its meaning we can hardly see ‘how this covenant would be of much value to Lemon ; yet it evidently was intended for his protection, and was the main object of this written agreement. (We think it has a broader meaning and *277covers such sum or sums of money as he may be *compelled to pay*by reason of any suit against him.) Perhaps we cannot clearly understand what was. meant by this covenant without taking into consideration all the facts and circumstances of the transactions between the parties. They may throw light upon the subject, and for that purpose they were admitted in evidence.

“ It is contended by the defendant that the covenant was designed to protect the plaintiff from any claim or suit at law by the assignee of O. A. Boucher, and for no other purpose. If you are satisfied from the evidence that such was the intention of both parties at the time, and that the covenant was intended for that purpose, and that only, then we say to you that the plaintiff cannot recover in this action. But the fact that the defendant employed counsel to defend in the ejectment suit, is some evidence that he considered the covenant embraced more, or that he might, to some extent at least, be liable to the plaintiff if Mrs. Fulton recovered in her action.

“ We therefore decline to charge you as requested by defendant’s counsel, that the covenant cannot be construed as embracing such a claim as this. But, on the contrary, we say that if the covenant was not inserted solely for a different purpose, but generally for the protection .of plaintiff, and if the plaintiff was compelled by means of the ejectment suit to pay the sum he claims, it is embraced in the covenant. Nevertheless, if the plaintiff voluntarily took a new lease of the premises, and agreed to pay an extra rent, merely to avoid trouble and vexation, he cannot recover the amount thus paid from the defendant.

“ It was not necessary, however, that the defendant should be actually turned out of possession. If the sheriff by virtue of the writ of *habere facias possessionem*had put Mrs. Fulton into possession of her individual half, that was sufficient (if there had been no neglect of duty on the part of the plaintiff) to justify him in making an arrangement with her for his remaining during the term of the lease he had bought from defendant.

“ The plaintiff was bound to defend in good faith the action of ejectment. But after the verdict and judgment against him, he was not bound to sue out a writ of error if his counsel advised him that there was no chance of having the judgment reversed, and if he could not conscientiously make the affidavit that the writ of error was not taken out for delay. On the other hand, if his refusal to take out a writ of error was not in good faith, but simply because he had got tired of the litigation and wanted to make peace *278with Mrs. Eulton, then he was guilty of a neglect of duty and is not entitled to recover in this case.

“After the decision in the ejectment suit, and after Mrs. Fulton had been put in possession of her undivided half, it would have been prudent and proper in the plaintiff to have consulted with the defendant as to what he should do, and what terms he should make with her. But his neglect to do so is not a bar to his recovery in this action.

“ The defendant would not be bound by the terms he made. The plaintiff might have to prove that the terms he made were the best'that could have been obtained, or the defendant might have shown that they were unreasonable or unjust to him. On this point, however, there is no controversy, for the defendant admits that, the terms were reasonable.

' “ But you should inquire whether all of this increased rent was for Mrs. Fulton. The plaintiff had a good lease as to the undivided half of Jane M. Dilworth. He had no right to agree to give her an increased rent. If the increased rent of $600 per annum was for the benefit of Jane M. Dilworth as well as Mrs. Fulton, if such was the understanding at the time, and each received an equal share of the increased rent, the plaintiff would have no right to recover the whole amount from the defendant. He could only recover the amount that was paid to Mrs. Fulton.”

The verdict was for the plaintiff for $514.64.

The defendant sued out a writ of error, and assigued for error:

1. The answer to the plaintiff’s point.

2-4. The answers to the defendant’s 2d, 3d, and 5th points.

6. The part of the charge in brackets.

*'S. M. Raymond*and *G. B. M.*Smith, for plaintiff in error.

The covenant was for refunding “ such sums of money as may be recovered, etc.this did not include the increased rent plaintiff agreed to pay to remain in the house. The covenant ivas not a warranty for quiet enjoyment. To adopt the construction given by the court below would be to reform the covenant, not to enforce it: Frazier *v.*Monroe, 22 P. F. Smith, 166 ; Nelson *v.*Von Bonnhorst, 5 Casey, 352.

*Aughinbaugh $ Duff*and *Weir §*Gibson, for defendant in error.

Judgment was entered iu the Supreme Court, November —, 1875.

Per Curiam:

The effect of the recovery in the ejectment in this case was to destroy the lease, and thereby to compel the payment of rent under a new lease. Clearly, the ihtent *279of Wraj’s covenant in his ■ agreement to sell the lease and fixtures to Lemon, was to protect the latter against the re - suits of a recovery which would deprive him of the fruits of his purchase.

IV"ray bound himself to refund to Lemon such sum or sums as may be recovered from him *by means of any*writ, or suits at law, brought against him *for and on account of his purchase of said leasehold and fixtures.*If we hold because the action was ejectment, and no specific sum was recovered, therefore the covenant was not broken, we miss the very intent of the covenant. The lease was thereby totally gone with all its incidents and benefits. The damage intended to be defended agaiust could only be fairly measured by the cost of a new lease, *bona fide*made. It -was *by means*of the ejectment this damage was incurred, and these words, found in covenant, will fairly cover the injury.

Judgment affirmed.