White vs. Furtzwangler. without the ditch and water; that he had made valuable improvements, expending large sums cleaning out and repairing the ditch, etc.; that he had no notice whatever of Barlow's claim until after his own purchase; that he got no reduction in the price on account of that claim, but on the contrary was positively assured that the plaintiff owned the ditch, except that the Pigeon Roost company might have some interest in it, and he then gave the release of warranty to the plaintiff'; that the plaintiff had never given him a deed from the stockholders of the company to their right to the ditch, as he agreed to do, on securing the release of warranty; and that he had never been disturbed in possession by any of the stockholders of that company. The defendant introduced other evidence, substantially to the same effect, as to the necessity of the water to the mine and the great impairment in the value of the property by reason of the loss of the water; that water can be got to the lots only by this ditch or by purchase of the Hand company; and that it was worth twelve cents a foot. He also showed by the attorney who drew the deed and mortgage, that the property was sold as one entire property; that the defendant would not have bought without the ditch; that the plaintiff seemed uncertain about the title, but did not say it was not good; and that the witness gave an opinion that it was good. There was further proof that the plaintiff tried to sell the note and mortgage to a third party for $2,500. In reply, the plaintiff introduced several witnesses. One McAfee swore that he was present when the deed was executed; that he was the plaintiff's agent; that he was instructed not to warrant the title to the ditch, and the defendant agreed to release the plaintiff from this warranty, and in consideration of this the plaintiff agreed to reduce the price from $8,000 to $6,500; that White vs. Furtzwangler. the land was worth $8,000 without the ditch; that defendant told witness that Barlow had offered to give him the ditch in exchange for rights, etc., but would not accept it because he had Barlow where he wanted him; that at the time of the sale, the plaintiff said his title to the ditch was as a stockholder in the Pigeon Roost company, which witness thought was one-twentieth; that the defendant thought the title was good, but plaintiff was doubtful as to it, and said he was willing to warrant the title to the land but defendant would have to take the ditch for what it was worth; that the water was a part of the consideration; and that the mine could be worked to a considerable extent without the water. One Huff swore that he met the defendant before the sale and told him that he was Barlow's agent and Barlow claimed the ditch, and there would be a lawsuit about it; that the land was worth $5,000 without the ditch; that the mine could be partially worked without water, but not successfully; and that it was the custom of mining companies to buy the water with which they worked. By Cantrell and Duckett, the plaintiff showed that the lots were worth $5,000 without the ditch (Duckett said he would not give that amount unless he knew he could buy water); and that the mine could be partially worked without the water. W. P. Price, the plaintiff's attorney, swore that, in a conversation with defendant, the latter told him he thought of buying these lots; and witness gave him notice, as Barlow's attorney, that Barlow claimed the title to the ditch; that witness owned a fifth interest and represented two-fifths interest in the lots, and these three were sold to plaintiff, no interest in the ditch being conveyed in this transaction; and that, according to what witness got for his fifth, the land would be worth $10.000. White vs. Furtzwangler. The jury found for the plaintiff $4,000. The defendant moved for a new trial on the following grounds: (1)-(2) The charge of the court was contrary to law and evidence. (3) Because the court erred in charging the jury as follows: "In this case, the defendant cannot recover of the plaintiff for a breach of his warranty. But if there has been failure of consideration, total or partial, he may have the value of the property for which the title fails set off against the purchase-money yet due by him, as far as it will go, and the remainder would be the amount you would find, unless you should believe that the defendant agreed, at the time of the trade, to take the water-ditch at his own risk, and that he had, before or at the time, notice of the defect of the plaintiff's title to the ditch. If you think he took it at his own risk and simply agreed to buy such right as the plaintiff had to it, then he would not be entitled to any deduction from the amount due by him on account of the loss." The motion was overruled, and the defendant excepted. M. G. BOYD, by brief, for plaintiff in error. PRICE & CHARTERS, contra. SIMMONS, Justice. 1. The official report in this case shows the nature of the pleadings, the evidence and the grounds of the motion for a new trial. We have carefully examined this record and have failed to find any error committed by the court below against this plaintiff in error. The evidence in the case more than sustains the verdict of the jury. Upon a careful reading of the evidence, we are inclined to think that the verdict is too small-that White vs. Furtzwangler. the jury should have found the whole amount, principal and interest, against the defendant in the court below, instead of deducting the interest from the claim. While the evidence shows that the defendant purchased from the plaintiff the two lots of land and the ditch which brought the water through the land, and that he was deprived of the use of the water by one Barlow, who had recovered it from him in another suit, the evidence further shows that at the time he purchased the land and the ditch from Furtzwangler, he gave Furtzwangler a release from his warranty in the deed so far as the ditch and the water were concerned; stipulating in the release that he only held Furtzwangler liable on his warranty in the event that the stockholders of the Pigeon Roost Gold Mining Company should deprive him of the use of the ditch and the water. The evidence does not disclose that Barlow was one of these stockholders of the Pigeon Roost Gold Mining Company. Barlow, who had recovered this ditch and water from White, the defendant in the court below, not being one of the stockholders of the Pigeon Roost Gold Mining Company, Furtzwangler was not liable to the defendant, White, for any injury or damage sustained by him by reason of Barlow's depriving him (White) of the use of the ditch and the water. White took the risk when he purchased, and released Furtzwangler from his warranty against all persons except the stockholders of the Pigeon Roost Gold Mining Company. He therefore had no warranty from Furtzwangler against Barlow or any one else except the stockholders of the Pigeon Roost Gold Mining Company. Having released Furtzwangler from his warranty, except as to these stockholders, and Barlow not being one of them, and Barlow having ejected him or deprived him of the use of the ditch and water, he was not entitled to set up Fagan vs. McTier. this loss of the use of the ditch and water against Furtzwangler. 2. There was no error against the plaintiff in error in the charge complained of in the motion for a new trial. If there was error in the charge complained of, it was against the defendant in error, because it seemed to take away from the consideration of the jury the written release of White to Furtzwangler, and place the issue as to the risk of the deprivation of the ditch and water upon the parol testimony of the witnesses. Judgment affirmed. FAGAN VS. McTIER. 1. Where a plaintiff instituted his suit in the county court, and the judgment in that court was for defendant, and the plaintiff appealed to the superior court, and when called there the case was dismissed on the plaintiff's motion, and the plaintiff afterwards brought the same action in the superior court, a plea by defendant of a former recovery was not a good plea to the second action. (a) There is a difference between dismissing a case on appeal and dismissing the appeal. When the case on appeal is dismissed, the whole case goes out. When the appeal is dismissed, it is an affirmance of the judgment in the court below, "and the rights of all the parties are the same as if no appeal had been entered." April 27, 1888. Appeal. Dismissal. Renewal of suit. Before Judge HINES. Jefferson superior court. November adjourned ⚫ term, 1887. McTier sued Fagan in an action for damages for a breach of contract. The defendant filed several pleas, among them a plea of former adjudication, which is the only one necessary to refer to; and this was submitted to the court upon the following agreed statement of facts: McTier brought an action against Fagan upon |