Dorwin v. Potter , 5 Denio 306 ( 1848 )

By the Court, Whittlesey, J.

The defendant, in addition to the set-off, could doubtless recoup the damages he had sustained by reason that the bams on the demised premises were not placed in that state of repair required by the agreement. (Whitbeck v. Skinner, 7 Hill, 53.) The material question here is as to the proper rule of damages for such neglect to repair. We do not know what rule the referees adopted, but the questions permitted to be put to the witnesses, after objection, would only be admissible upon the ground that the defendant was entitled to all the damages which he might have sustained by injuries to the cows and young cattle, the increase of food required, and the decrease of produce by reason of the state of the barns in question. It strikes me that such damages are altogether too remote and contingent,'and that the true rule of damages is the sum necessary to place the barns in that state of repair in which they were to be put according to the agreement, with interest thereon if the referees thought proper to allow interest. (Blanchard v. Ely, 21 Wend. 342; 2 Barn. & Cress. 273.) The referees consequently erred in admitting testimony of the kind above referred to, and I think therefore the report of the referees should be set aside.

Motion granted.