Maguire v. Howard

Concurring opinion by

Woodward, J.

The condition so awkwardly expressed in the bond amounts, after acceptance by the vendors, to a guarantee on their part that the well of water on the premises shall not fail the vendee. This does not seem to be disputed, but it is said the vendee is not entitled to enforce the condition of the bond because he bought with full knowledge that the coal in the land had been previously granted to another, and if the well was exhausted by this cause, it is argued that he has no right-to complain.

But the vendors, when they accepted bonds with such conditions in them, knew also as well as the vendee, that the coal right had been previously sold, and that it was liable to destroy the well. The condition is broad and general enough to embrace a failure of water from the mining of the underlying coal. If the water failed from that cause there was breach of the condition. If the plaintiffs meant to exclude that cause of failure they should have said so. Having accepted the bond in language large enough to embrace a failure of water from whatever cause, they are very clearly liable to respond in damages when the failure took place from a cause which they could not fail to have anticipated, because created by their own prior conveyance of the coal right.

The third and fourth points made by the plaintiffs were so satisfactorily answered in the short extract that is given from the charge of the court, that we can add nothing to it without weakening it.

There was nothing in the fifth point to merit an affirmative answer. The condition was intended to secure the benefits of a *396well on the premises purchased. Without that guarantee on the part of the vendors, they would not probably have found a purchaser in the defendant. He has a right to enforce their guarantee whether contained in one bond or two. If he has paid all the purchase-money except the last bond, his right of set-off against that bond is all the more equitable.