Griswold v. Sabin , 51 N.H. 167 ( 1871 )

SARGENT, J.

The defendant alleges in his second plea that the deed or agreement upon which the declaration was founded was obtained of the defendant by the fraud and covin of the plaintiff. Eraud is charged, and must be proved to sustain this plea. If the plaintiff made a representation 'honestly to the defendant, which was material, and which proved to be false, upon which the defendant acted to his injury, that would not sustain a charge of fraud. An honest mistake is not a fraud. The term malo animo is treated in the defendant’s brief as meaning some criminal intent; but it was evidently treated in the charge to the jury as meaning simply a fraudulent intent, and that is tire sense in which the term is used as often and as appropriately as in any other.

The exceptions to the other rulings of the court, aside from those relating to the rule of damages, are waived by the defendant in argument, and we have not considered them attentively.

As to the rule of damages in this case, there is more room for argument. The rule in England is understood to be well settled in cases of contracts for the sale of real estate, and is this: “ Where the vendee refuses to perform, the measure of damages is held to be the difference between the price fixed in the contract, and the value at the time fixed on for the delivery of the deeds.” Laird v. Pim, 7 M. & W. 474, and cases cited.

It has been said to follow from this rule that if the property does not fall in value, the vendor can recover nothing but nominal damages. But that would be assuming that the price agreed on by the parties was the true value, which would ordinarily be the case where the trade was made in good faith.

The same was settled to be the law of Massachusetts, after several rulings the other way, in Old Colony Railroad v. Evans, 6 Gray 25, where the court say, — “ Upon more full consideration of the question of the measure of damages, in an action at law where the defendant has refused to receive the deed tendered him, the court are of opinion that the proper rule of.damages in such a case is the difference between the price agreed to be paid for the land, and the salable value of the land at the time the contract was broken.”

In Maine a different rule was established, in Alna v. Plummer, 4 Greenl. 258, and in numerous cases in New York, cited in Richards v. Edick, 17 Barb. 260-265, where it is held that in this class of cases “ the vendor is entitled to recover the full purchase price.” But in the opinion, GRiDLBY, J., admits that this rule is not equitable, and that, if it were a new question in that State, “ there would be great reason for adopting the principle which is now held to be the law of the English courts.” But he felt bound. by the precedents in that State, on the ground that the rule'had there become so well established that it ought not to be disturbed ; though the rule is there held to be different in regard to contracts for the sale of personal property.

In this State the rule is well settled in regard to contracts for the" sale of personal property. Stevens v. Lyford, 7 N. H. 360; Woodbury v. Jones, 44 N. H. 209; Gordon v. Norris, 49 N. H. 376, and cases cited, 385, 386; Haines v. Tucker, 50 N. H. 307-313.

And we think the same rule should and must be applied in case of contracts for the sale of real estate, where the vendee refuses to receive tli'e deed and pay the price according to the contract.

In this case the defendant objects that the instructions he requested were not given, viz., that if the defendant had broken his covenant, and the plaintiff afterwards sold and conveyed the property without the defendant’s consent, the plaintiff is entitled to recover only nominal damages. The defendant having broken his contract, the plaintiff might have brought his bill in chancery to compel a specific performance, or he might bring his suit at law for damages on account of its breach. Under the instructions given, it made no difference whether^ the plaintiff had sold the land or not: its real value at the time when the defendant broke his contract was the only question. If the plaintiff had sold the land at public auction, and notified the defendant, he might have been estopped to say that the pi’ice obtained was not its true value. But as the case stands, the plaintiff having sold the land at private sale, he cannot claim that the price obtained was the true value; but as we have seen, upon the instructions given, which we hold to be correct, it became entirely immaterial whether the plaintiff had sold the land or not, or for what price. And least of all could he be required to obtain the plaintiff’s consent to the sale, which he might never have been able to do. Upon this , general subject of the rule of damages in this class of cases, limited to contracts for the purchase of real estate, see Sedgwick on Damages 203, and cases; 2 Parsons on. Contracts (4th ed.) 506, and cases cited.

Judgment on the verdict..