Barns v. Learned, 5 N.H. 264

5 N.H. 264 | Superior Court of New Hampshire | 1830

By the court.

The circumstance, that Wight represented the farm, which he contracted to sell, as containing fifty-four acres, can have no influence in the decision of the question which this case presents. This defendant does not appear to have been in any way privy to any such misrepresentation ; and if the plaintiffs have been deceived and injured by Wight’s misrepresentations, they must look to him, and not to this defendant, for redress. They hold all the land for which they, in fact, contracted. But a parcel of land, of which the defendant was not seized, and which was not understood by either party to be bought or included in the deed, was included by mistake, and embraced by the covenant of seizin ; and the question is, whether the defendant can be permitted iu this action, which is founded on that covenant, to show, for the purpose of reducing the damages, that nothing was in fact paid for the land so included in the deed by mistake ?

We have decided, that in an action upon such a covenant, the true consideration may, for the purpose of ascertaining the damages to which the plaintiff may be entitled, be shown, notwithstanding a different consideration is expressed in the deed. 4 N. H. Rep. 229, Morse v. Shattuck.

And we have no doubt that in this case the defendant ought to be permitted to show, for the purpose of reducing the damages, that nothing was in fact paid for the land which was included in the deed by mistake.

The case of Leland v. Stone, 10 Mass. Rep. 459, is directly in point, and we refer to the very able and satisfactory opinion of Jackson, J. in that case, for a further illustration of the ground on which this decision rests.

The plaintiffs, in this case, are entitled only to nominal damages.

Verdict set aside, and a

verdict taken for ft,

and judgment accordingly.