Shepard v. Ryers , 15 Johns. 497 ( 1818 )

[Spencer, J.

No doubt he may, though no actual ouster proved.]^(a)

7. The deed from the plaintiff to Gibson and others, ought not to have been received in evidence, to show particular damages ; they are not mentioned in the declaration. (1 Chitty Pl. 333.)

Collier, contra. Though the plaintiff and defendant were, originally, tenants in common, yet before the agreement about the partition, the plaintiff had conveyed all his right and title, so that at the time of the agreement he was no longer a tenant in common with the plaintiff.

The evidence as to the release of the plaintiff was sufficient. Though one of the witnesses spoke of his impressions, yet another witness, Joshua Ferris, proved the release by the plaintiff pursuant to the agreement, and that the defendant had acknowledged to him that Avery had released to the defendant. The evidence was uncontradicted, and went to the jury, who have passed upon it.

As to the damages, the cases cited are those of bonds of indemnity, or where the question is technically as to the indemnity. They are not analogous to the present case.

It is obviously just, that the plaintiff should be restored to the situation in which he would have stood, had the defendant performed his part of the agreement.

The deeds to Gibson and others were sufficiently referred to in the declaration to entitle the plaintiff to offer them in evidence.

Thompson, Ch. J.

delivered the opinion of the Court. The rule of damages by which the recovery in this case was governed, cannot be sanctioned in several particulars. The action is founded upon a covenant entered into by the parties, the object of which was to effect a division of certain lands in which the parties were jointly interested. One item of the plaintiff’s claim to damages, was 400 dollars, which, it was alleged, he paid to the defendant to induce him to enter into the agreement. This sum could not, in any way, be considered as damages for breach of the agreement. It formed a part of), the consideration of the agreement ; and as long as that is considered a subsisting contract, the plaintiff can have no claim to recover back the Consideration money. If the covenant had been rescinded, or an end put to it, in any manner, without his fault, then the plaintiff might recover back this money; but as long as the covenant is considered in force, he can have no claim to recover back the sum thus paid. The other items allowed as damages are founded on the supposition that the covenant was in full force. The plaintiff could not recover damages to which he might, by possibility, be liable, in consequence of the covenants in his deeds to Gibson, English, and Roberts. These were general covenants of warranty, and for quiet enjoyment. The deeds were for farms, which by the covenant were to be set off to Shepard; and which have been awarded to him by the persons for that purpose appointed. But these grantees have not been disturbed-in"their possessions, nor has Shepard, in any manner, been made liable for any damages under his covenants. Indeed, it does not appear that his covenants have been broken, as no eviction of his grantees has been shown. His liability is altogether contingent; and he may never be exposed to the payment of the damages he has recovered of the defendant. The plaintiff might, possibly, apply to the Court of Chancery and compel a specific performance of the defendant’s agreement to release his claim to these farms; but as long as he chooses to rest upon his covenant for damages at law, he must show himself damnified, or he can only recover nominal damages. Indeed, it is very questionable whether the defendant ever could set up his title to these farms. The, partition made by the persons appointed for that purpose, might be considered in the nature of an award of arbitrators, which, though it might not have the operation of conveying the land, might estop the defendant from setting up his title to these farms, or disturbing the possessions held under the plaintiff’s deeds. (3 East, 15. 4 Dallas, 20.) A new trial must, therefore, be granted, with costs to abide the event.

New trial granted.

(a) Oates v. Brydon, 3 Burr. 1895. 12 Mod. 657. 7 Mod. 39. 1 Term. Rep. 758. 3 Wils. 118.