How v. How , 48 Me. 428 ( 1860 )

The opinion of the Court was drawn up by

Goodenow, J.

This is an action of assumpsit, on a special contract, dated Dec. 11, 1846. The plaintiff, having a farm with live stock and farming tools, conveyed the same to the defendant’s intestate, Mark How, who was his son, and who undertook to carry on the farm, and to maintain the plaintiff and his wife, and keep on the farm the same amount of stock and farming tools as the plaintiff then had on the same, and to pay the taxes, and furnish the plaintiff and his wife with a horse and carriage whenever they desired, during their natural lives and the life of the survivor. Mark performed the contract during his lifetime. He died in the year 1854. Harriet How administered on his estate; and the jury have found that she has not performed the obligation, contained in the contract, since the decease of Mark How. Under the directions of the presiding Justice at the trial, the jury found the damages to the plaintiff, for one year, to be in amount $43,65. The verdict does not state that the jury estimated the damages only for one year, but it is fairly to be inferred from the report of the Judge, and that the defendant acquiesced in this mode of settling the damages, without objection. As the chances of life of the plaintiff and his wife, and the value of an estate for life, were matters of computation, the Judge suggested to the counsel, that the jury find the annual damages, and that the verdict be amended, by rendering judgment for such sum as the plaintiff would be entitled to recover, at that annual rate, for the life of himself and wife. To this no objection was made on either side, and the Judge directed the jury to find the annual damages the plaintiff sustained by reason of the defendant’s non-performance of the contract declared on.

What was the value of this annuity of $43,65 on the 8th of April, 1855 ? The plaintiff was then seventy-six years of ago, and his wife’s age was sixty-four years. By Wiggles-worth’s table, the expectation of life of Mrs. How, the wife, it is alleged, would be thirteen years, and that the value of the annuity of $43,65, for thirteen years, was $410. If there is no mistake in this calculation, the plaintiff is entitled to have the verdict amended accordingly, and to have judgment rendered for that amount, with interest on the same from the 8th of April, 1855, to the time of the rendition of the same. Id certum est, quod certum r-eddi potest. We are of opinion that this question has been fully and fairly litigated, and that the jury have passed upon it, under instructions which were unobjectionable, and that there is no such error in the form of the verdict, or in the ruling of the Justice presiding, as to require a new trial.

Judgment for §410, damages, and interest from April 8, 1855, and for costs.

Tenney, C. J., Rice, Appleton and Cutting, JJ., concurred.