Lamoreaux v. Rolfe , 36 N.H. 33 ( 1857 )

Eastman, J.

This case, as sent to us, is imperfect; but we gather from it that the action was founded upon a contract dated February 3, 1854, by which the defendant agreed to draw certain timber for the plaintiff from lot No. 65, in the 2d division in Brunswick, Vermont. The execution of the' agreement by the defendant was proved; but he excepted that the contract was not shown to have been legally executed by the plaintiff, and therefore that the consideration failed.

It appeared that the plaintiff’s name was affixed to the contract by one Chase ; and the exception was that the power-of-attorney, by which the contract was signed, was not shown to have been delivered before the execution of the agreement by Chase. But we think the evidence was competent to be submitted to the jury, and from which they might find a seasonable delivery of the power. Chase signed the agreement as agent more than six months after the date of the power-of-attorney. He was at the time the acting agent of the plaintiff, and the power-of-attorney was seen in his hands either before or after the execution of the agreement. In the absence of conflicting evidence, a jury might well find a delivery of the power-of-attorney before the date of the agreement; and this exception must be overruled.

Prima fade, the evidence introduced was competent to show the plaintiff’s right to take the timber from the lot. His agent went upon the lot several times with the owner, with the avowed purpose of purchasing. Subsequently he run out the lines of the lot, and went over it with the defendant, and examined the timber. It was not necessary for the plaintiff to show himself to be the owner of the lot. He may have purchased the timber of Hyde, and thus have had a perfect right to remove it. For the defendant to have succeeded upon this ground, he should at least have produced some evidence of the plaintiff’s want of title to the timber. This he did not attempt to do, and he cannot prevail upon this ground.

The rule of damages as laid down by the court was correct. .The defendant having absolutely refused to perform the contract, there was no reason why the plaintiff should wait any length of time before prosecuting for the damages. After the refusal to perform the agreement, the plaintiff, if he would have the timber drawn, was obliged to make a new contract with others. He was not required to wait and see if the defendant would not change his determination. The contract was broken when the defendant absolutely refused to perform; the time to' commence the performance, as we understand it, haying then arrived: and the breach was then perfect.

But the other exception to the verdict we think must prevail. To show the damages which the plaintiff sustained by the non-fulfilment of the defendant’s contract, the plaintiff read in evidence an agreement made between him and French and Hunt, by which they contracted to draw the timber from the lot for a price above that for which the defendant was to draw it.

The value of property may be shown by actual sales of the property itself, of of similar property situated under like circumstances. Such is the settled rule in this State. Whipple v. Walpole, 10 N. H. 130 ; Bean v. Kirk, 11 N. H. 397 ; White v. Concord Railroad, 10 Foster 188.

So an offer to sell property by the owner may be evidence against him, as tending to show that the property was worth no more. Kersey v. Insurance Co., 7 Foster 149. It is in the nature of an admission on his part as to its value.

Upon the like principle it is competent to show the price paid for doing certain or similar labor, as tending to prove the value of the labor. And, as against a party, an offer by him to perform the work would be admissible, as showing what it was worth.

But the evidence used upon the trial in this case does not fall within this principle. It does not appear that the work was ever performed by French and Hunt, or that the contract with them was ever carried into effect. The evidence was not used against the party making the contract, but in his favor. It was nothing more than his statement of what he was willing to give to have the lumber drawn, and the agreement of French and Hunt to the same. To admit evidence of this kind would be to open a door to fraud, since it could easily be got up for the occasion. Had the services been performed under the agreement, the evidence would have been competent.

For the admission ' of this evidence the verdict must be set aside, and a New trial granted.