It is objected to the right of the plaintiff to maintain this action, that before the accruing of any cause of *618action for damages for breach of the covenant declared upon, O. S. Plumb had conveyed to one Sanford Plumb all his interest in the premises to which this covenant attached, and that by force and effect of such conveyance, the covenant and the right to recover damages for any breach thereof passed, with the conveyance of the land and privileges, to his grantee.
This might be a correct view of the case, if there had oeen no other instrument executed between the parties than the deed to Sanford Plumb ; but the facts find that simultaneously with, and as a part of the same transaction, it was stipulated between the parties to that deed, by another instrument in writing, that Ozias S. Plumb should be authorized to receive to his own use all such sums as might be recovered of said Shattuck for not fulfilling this covenant. The effect of this agreement is such as to obviate the objection on which the defence rests. If the plaintiff recovers in the present action, such a recovery will be a bar to any action by Sanford Plumb, for the breach of this covenant, for which damages shall be thus recovered by the plaintiff, inasmuch as Sanford has, by his own act, sanctioned such recovery.
It does not necessarily follow, because a covenant runs with the land to an assignee, that in no event the assignor can maintain an action on the covenant after he has assigned it. This position may be well illustrated by the case of the usual covenants in conveyances of real estate, where there have been successive conveyances from A. to B. and from B. to C., each with covenants of warranty. Upon the eviction of C., he may maintain his action on the covenant of warranty, either against B. or A., at his election. But if B. shall pay to C. his damages occasioned by such a breach of the covenant, B. may then resort to A. for damages on his covenant; and it would be no defence for A. to allege that his covenant to B. ran with the land and therefore passed to C. In the case supposed, the payment by B. has discharged all liability of A. to C., and therefore B. may well maintain his action against A. So in the present case, the party taking a conveyance, which might pass all the covenants running with the land, has waived all right or. *619his part to recur to the defendant for his breach of the cove nant, and, by mutual arrangement between hivn and his assignor, leaves to the assignor the sole interest in such covenant. The defendant riot being responsible to Sanford Plumb, on this covenant, for the reasons already stated, the plaintiff may properly enforce this claim for damages, as assignee of Ozias S-Plumb, for the benefit of said Plumb’s creditors.
Upon the question reserved as to the damages, the court are of opinion, that the plaintiff is entitled to recover of the defendant only one half of the actual expense incurred in repairing the dam, and that he is not entitled to damages for any loss of profits in business, in consequence of the neglect of the defendant seasonably to aid in making the repairs. It being the duty of O. S. Plumb to make one half of the repairs, and it being a right which he might at once exercise, to proceed to make the whole repairs, after neglect and refusal of the defendant, upon reasonable notice, to aid in the repairs; if said Plumb delayed to exercise that right and thereby sustained a loss, it is one which he alone must bear. The verdict was therefore rendered upon the proper principle, in the matter of damages, and is not to be enlarged by the assessment of damages for loss of profits in business by reason of the dam remaining unrepaired an unreasonable length of time.
Judgment on the verdict.