Kennett v. Tudor , 85 Vt. 190 ( 1911 )

Rowell, C. J.

The plaintiffs’ concession that the Gibson and the Ware mortgages are valid in New Hampshire and constitute valid incumbrances there on the property that was taken from Vermont, was equivalent to a concession that Kennett did not intend to contest the trover suit on the ground that they are invalid. This being so, the concession bound the plaintiffs in this case as much as Kennett’s answer to the like effect would have bound them, and so the defendants got what they asked for, namely, Kennett’s intention in respect of that ground of defence.

No copy of the second count is furnished us. All we know about it is, as stated in the exceptions, that it alleges fraud and deceit in the sale of December 4, 1908. Nor have we a copy of the bill of sale, but we assume that it has the necessary elements of a contract of sale, for it was so treated below. Taken thus, the court was right in excluding the testimony of Ernest Tudor, for it would have gone beyond the purpose for which it was offered, namely, to rebut the plaintiffs’ claim that they were deceived and cheated as alleged, and have tended to impeach the contract itself for non-consummation, which was not within the purpose for which the testimony was offered, which purpose is the same as the claim here made for its admissibility. And though the contract may be but matter of inducement, yet proof of it was essential in order to show a relation between the parties that would make the deceit actionable. Slack v. Bragg, 83 Vt. 404, 411.

The plaintiffs also contend that the ruling was right because the plea of not gulity operates as a denial only of the deceit alleged, and not of the facts stated in the inducement. This is so under Reg. Gen. Hil., 4 Wm. IV, to which they refer, but not so at the common law, where, in case anything is admissible under the general issue that shows that the defendant is not guilty of anything actionable in respect of the matter charged in the declaration. Jerome v. Smith, 48 Vt. 230; and it does not appear that that scope of the issue was restricted here to the injury of the defendants, for they were permitted to testify fully to conversations covering the Gibson and the Ware mortgages, and were not denied the privilege of showing conversations tending to impute to the plaintiffs knowledge of the existence of said mortgages at the time the bill of sale was given.

As to damages. The defendants claim that it was error to refuse their request to limit them to a nominal sum. The plaintiffs claim that the full amount of the mortgages was the proper measure, in support of which they rely upon three Vermont cases, namely, Bowman v. Parker, 40 Vt. 41; Houghton v. Carpenter, 40 Vt. 588; and Shanks v. Whitney, 66 Vt. 405. But none of them are in point. Bowman v. Parker was case for fraudulent representations in the sale of certain shares of the capital stock of the Vermont Marble Company. The Court said that the general rule of damages in actions of that character is the difference between the value of the property as it really was at the time of the sale, and what its value would have been had the representation for which the seller is found liable been true. The case does not show what the representations were, but the opinion says they were representations affecting the value of the stock, by which is evidently meant the intrinsic value. Here the representations did not affect the intrinsic value of the property.

Houghton v. Carpenter, was case for breach of warranty in the sale of butter. The rule of damages was said to be the difference between the value of the butter at the time of sale, and what its value would have been had it been as warranted. There the butter was not as warranted, but was much inferior in quality; and there the warranty went to the intrinsic quality of the article sold.

Shanks v. Whitney was case for deceit in the exchange of real estate. The defendant’s property was subject to a large mortgage that was about to mature. The plaintiff fully informed them that if he made the exchange and the mortgage could not be replaced, he should be obliged to let the property go on it, as he was not able to raise the money to pay it. They assured him that it could be replaced, and that they then had a man who would do it, and that they would turn that opportunity over to him. A street and a sidewalk ran over the property, and they told the plaintiff that the circumstances were such that the municipality was legally bound and ready to pay therefor. All of these representations were false to the knowledge of the defendants, but the exchange was made on the faith of them, after which the plaintiff made diligent effort to replace the mortgage, but could not, and the defendants did not, nor would, try to help him, nor give him the name of any one who would, and so he was forced to and did let the property go on the mortgage. The court applied much the same rule there as the court applied here; but there the rule was adapted to the case, for the plaintiff had suffered all the damage he recovered, while here the plaintiffs have suffered no actual damage, and may never suffer any, for the defendants may pay the mortgage debts, or Daley may enforce them against the mortgagor personally and let the security go free.

Indeed there is no difference between this case in respect of damages and cases on covenants against incumbrances, which are broken, if ever, when the covenant is made, and give rise to a claim for nominal damages, but to no more unless more have been sustained. It is not enough that here the plaintiffs conceded the validity of the mortgages, and virtually conceded that Kennett does not intend to defend the trover suit on the ground of their invalidity, for that did not pay those debts, nor discharge the mortgagor therefrom, nor preclude Daley from collecting them of him by a personal judgment thereon, nor debar Kennett from defending Daley’s suit on the ground of the invalidity of the mortgages. The court erred therefore, in not confining the plaintiffs to nominal damages as requested.

This being the only error, the general practice would require a final judgment here for nominal damages, no issue to the jury remaining undisposed of. But we do not render such a j udgment, as it would bar recovery by the plaintiffs of what they may have to pay to free their property from the mortgages; for the deceit is the cause of action, and would merge in such a judgment and thereby become extinguished as a further cause of action, for it is not a continuing wrong divisible in point of time, and so a fresh wrong as often as fresh damage arises from it, but a terminated wrong not thus divisible, and consequently not capable of being demerged and made again to serve as ground for recovering fresh damage.

Thus, in Admr. of Whitney v. Clarendon, 18 Vt. 252, it is held that recovery in an action of trespass on the case by a father for loss of service of his minor son because of personal injuries occasioned by the fall of a bridge that the defendant was bound to maintain and keep in repair, — was a bar to a second action for like damage sustained by reason of the same injury, though recovery in the first action was limited to damage sustained prior to its commencement and the second action was brought expressly for such loss after the first action was commenced. The Court said that to maintain a second action for fresh damage when there is no new injury, would be novel in principle and not warranted by authority.

So in Morey v. King, 57 Vt. 383, the question was whether a party who had failed to recover all the damage he had sustained by a single breach of a contract because he did not properlndeclare for a portion of them in a former suit, could maintaiy a second suit to recover what he did not recover in the first suit; and it was held that he could not. The Court said that the general doctrine that a party cannot divide up an entire claim and maintain separate actions for each part, whether the claim arises from contract or tort, is well settled and elementary.

So in Bullard v. Thorpe, 66 Vt. 599, 606, it is said that if a demand is split up, and a judgment recovered for a part, the legal proposition that a judgment for a part of an entire demand is a conclusive bar to any other suit for another part of the same demand is everywhere inflexibly maintained.

In the case at bar the actual damages lurk in the fact that the property is incumbered by mortgages that the plaintiffs-will have to pay, and they should have paid them in season to recover therefor in this action; but by omitting to do so they split their damages into nominal and actual, and thereby made a case against themselves for barring the latter if they have the former, and this they do not want to do, but want the judgment reversed as to damages, and the cause remanded with liberty to amend by alleging payment of the mortgages when made so that recovery therefor may be had in this action; but if such liberty is not granted, they ask leave to become non-suit, for they agree, though the defendants do not, that a judgment for nominal damages will bar actual damages. So the question is whether it is allowable thus to bring in the question of actual damages at this stage of the case, and we think it is on the-strength of Potter v. Taylor, 6 Vt. 676, as well as on general principles. That case was an action for the breach of a covenant-against incumbrances. After the writ was issued but before it-was served, the plaintiff paid the incumbrance and was allowed to recover the amount in damages. The Court said that the-cause of action had accrued when the suit was commenced, and that though the plaintiff would be entitled to nominal damages only but for the actual payment of the incumbrance, yet that that payment was not the ground of action but only the consequence of it, and was a loss necessarily resulting from the breach of covenant that constituted the cause of action, and therefore was properly included in the damages recovered. It is true that there the incumbrance was paid before the writ was served, but such payment did not go to the perfection of the right of action, but only to the enhancement of the damages, and the Court evidently did not regard the case as affected by the holdings that it is sometimes enough if the right of action is perfected before the service of the writ. So we see no distinction in principle between that case and this, though this is-tort and that was contract.

In Haskins v. Ferris, 23 Vt. 673, which was trover, the plaintiff was allowed to amend by declaring for other property taken at the same time, on the ground that the taking was the cause of action, and that it might be presumed that he intended to sue for the whole cause of action in the first place. But here, that the plaintiffs intended to sue for their whole damage in the first place is more than a presumption, it is a fact, for they went for the whole on trial and got it.

In Boyd v. Bartlett, 36 Vt. 9, the original declaration counted on a covenant against incumbrances. A new count was allowed on a covenant of warranty in the same deed, it being held not to introduce a new cause of action. The Court said that in practice amendments are -allowed more liberally than formerly; that the matter of allowing them is, to a great extent, a question of fact, depending on the purpose and intent of the plaintiff in bringing the suit and framing the declaration.

Indeed this Court said long ago that an amendment to a declaration may be made if it does not change the form nor the nature of the action nor introduce a new subject-matter. Skinner v. Grant, 12 Vt. 45G. Here the amendment asked for would do none of those tilings, and consequently we think it allowable. But the plaintiffs should apply below for the leave asked, as was directed in Allen v. Parhhurst, 10 Vt. 557, 562. If that court grants the leave, it'will fix the terms, as to which we say-nothing. Judgment will be reversed only as to damages. Marshall v. Dalton Paper Mills, 82 Vt. 489, 505; Austin v. Langlois, 83 Vt. 104.

Judgment affirmed except as to damages, but reversed as to those, and cause remanded.