The times. [volume] (Richmond, Va.) 1890-1903, 1900-09-23

all the things he had covenan ted 70 90
during the first term, and he cannot re-
cover damages upon that agreementH ZOE
the defendant' S efusa1s to renew and con-
TIME the lease for the second term. un-
less he AYERS and provost erformance on
his patt at the time. and in the manner man i.
stipulated, or gives some valid excuse Ior
his non-perfo rmance
The plaintiff, among other things, coy "
enanted that he would move at least 16,UvV
tons of ore annually, and as much more
as .1,a# could obtain satisfactory sale for;
that he would mine the premises in
sl,ilifuls and sworkmaniike manner, SO as
to do no injury to them, ia King the ore
as II came, coarse and fine together, ana
that he would diligently and in a WORK
5manlike manner search for ore not there
tofore discovered.
The averments showed that the plalnlilI
had done many things which II was nia
duty to do in the performance OF ms cove
nants, but they do not show clearly thal
he had done them in the manner and at
the time they were required to be done by
the terms Of the lease; and there is no
avarment at all that he had mined the
premises in skillful and Workmanl1ke
manner, SO as to do no injury to the prem
Uses, Or that he took the iron ore as 1t
came. ETC.. etc, nor does he aver. such a
state of facts as would show that ne mad
a valid excuse for not performing them.
The averment of the performance Of the
condition precedent to the right OF the
plaintiff to renew the lease being insutfl-
Gent. the demurrer to the count ought to
have been sustained.
He'd to be error to allow parol evidence
of the construction which the parties had
nlaced upon the written agreement Sued
on to go to the jury, where there is no
ambiguity in the writing as would render
such evidence admissible.
In ascer tanning damages, where there IS
an interference with or Withholding OF
property or a breach of contract, the gain
prevented, il provable. may be recovered.
Profits, which are the difference between
the agreed price OF something contracted
for and its ascertainab!e value or costs,
are recoverable. But where profits are
dependent upon future bargains or states
of the market, they are not, as general
rule, subjects of recovery.
Judgment reversed, verdict set aside,
new trial awarded ara cause remanded
with leave to the plaintiff to amend his
declaration.
MONTG oA1ERY VS.. COMMONWEALTH.
Montgomery VS.. Commonwealth From
the Circuit Court of Rockbridge county.
Opinion by Judge Ca-rdweli.
Plaintiff in error was convicted in the
County Court of Rockbr;dge county OF
maliciously and felon<ous cutting and
w-ounding one William e. Davidson, and
sentenced in accordance with the verdict
of the jury to confinement in the pentten-
t:ary for term of four years, but upon
a writ of error from the Supreme Court
he was awarded a new trial.
At the July term, 1900, OF the County
Court, the prisoner was again tried, con-
victed, and sentenced in accordance with
the verdict of the jury, to imprisonment
in the penitentiary for the term Of three
and half years: whereupon he applied
to the Judge of the Circuit Court for a.
writ Of error, which was refused, and the
case is again before the Court of Appeals
upon a writ of error. This Court again
reverses the judgment of the County Court
and awards a new trial.