Opinion
02-04-1820
Backus v. Taylor
OPINION
In this case the declaration was in the following words:
" The Superior Court, Botetourt County, to wit; Charles Taylor complains of George Backus, in custody, & c., of a plea of covenant broken; for this, that, whereas, by certain articles of agreement, made and entered into, on the 24th day of May 1816, at the parish of in the County aforesaid, and within the jurisdiction of this Court, between the said Charles Taylor of the one part and the said George Backus of the other part, sealed with their seals and bearing date the day and year aforesaid, and to the Court now here shewn; by which he the said Taylor did agree to rent to the said George Backus his establishment at the Yellow Springs, together with what furniture he could spare, and his cook Nathan; in consideration whereof, the said George Backus did agree to pay unto the said Taylor, on the first day of September next ensuing, the sum of six hundred dollars current money of Virginia; by virtue of which said articles, he the said Backus did enter upon and take possession of the establishment of the said Taylor at the Yellow Springs: --and the said Taylor in fact says, that, although he hath, well and faithfully, according to the tenor and effect of the said articles of agreement, performed and kept all and singular the covenants in the articles aforesaid, above specified, on the part of the said Taylor to be observed; yet the said Backus on his part hath not performed, according to the tenor and effect of the said articles of agreement, the covenants in the articles aforesaid, above specified, on the part of the said Backus to be performed. And the said Taylor saith, that the said Backus hath not kept his said Covenant made by him to the said Taylor; that he hath not paid the said sum of money, which he agreed to pay; to wit, six hundred dollars; at the time appointed, to wit, on the first day of September next ensuing; neither hath he paid the same before, or since, though often requested; but the same to pay he hath hitherto altogether refused, and still doth refuse; whereupon said Taylor saith he is prejudiced, and hath damage to the value of, and therefore he brings his suit."
The defendant craved Oyer of the articles of agreement, which were as follows: --" Articles of agreement made and entered into this 24th day of May 1816, between Charles Taylor of one part and George Backus of the other part, witness, that the said Charles Taylor doth rent to the said George Backus, for the approaching season, his establishment at the Yellow Springs in the County of Montgomery, together with as many beds and furniture as the said Taylor can spare, also as many dishes, plates, cups and saucers, knives and forks, and kitchen furniture as he can spare from the use of his own house, and his cook Nathan. In consideration of which, the said Backus engages on his part to keep the best accommodations for visitors; is to board the said Taylor and his wife during such part of the season as they may stay, and furnish them with the shed room of the framed house next the dining room; is to return at the end of the season all articles of furniture belonging to said Taylor, in as good condition as when received, natural wear excepted, and to make restitution for any that may be lost or destroyed; is not to suffer any of the trees standing in the yard around the Springs to be cut or injured, or suffer any of the buildings to be unnecessarily abused or injured; and, on the first day of September next, is to pay unto the said Charles Taylor the sum of six hundred dollars in current money of Virginia. For the true and faithful performance of this agreement, we bind ourselves, our heirs & c., each to the other, in the sum of twelve hundred dollars. --Witness our hands and seals the date aforesaid."
The defendant demurred generally to the declaration; which demurrer being overruled on argument, he pleaded that he had not broken his covenant. At the trial, the plaintiff offered the said articles of agreement as evidence to the Jury, to which the defendant objected on the ground that the said writing was not the same described in the declaration; but the Court, being of opinion that there was no substantial variance, permitted it to go to the Jury; to which opinion the defendant excepted. --Verdict and Judgment for the plaintiff for $ 373 58 cents, damages and Costs; from which the defendants appealed to this Court, where the same was affirmed.