| Superior Court of New Hampshire | Jul 15, 1833
delivered the opinion of the court.
The only question raised in this case, is, whether trespass can be maintained. It is a general rule adopted by all courts that wherever one action. will subserve the purposes of justice, as well as another, that it shall be
Sugden on Vendors, who is also cited by the counsel, says, that “ where a purchaser is put into possession on a treaty for a purchase, ejectment will not lie, without a demand and a refusal to quit, unless, upon possession being given, he agreed to quit, if he should not pay the purchase money on a given day, or the like ;” exceptions which include this case. The instance put of a man’s agreeing to pay the purchase money on a given day, and failing to do so, forms no greater reason why trespass should lie than the causes here assigned, and the authority is not confined to this case alone, but to “ a refusal to pay the purchase money on a given day, or the like.'’’’ Here was a tender of the deed, and a refusal to receive it as the defendants had agreed to do, which agreement formed the only consideration why he was permitted to enter upon the premises making this case one of that description in which it seems to be admitted that trespass will lie. These aré the principal cases cited by the defendant’s counsel, and they seem to us to come short of sustaining the position, that trespass cannot be maintained in this case as a matter of authority.
On the other hand, the case of Smith v. Stewart, 6 Johns. 47, is directly in point. It is there liolden, “ that where an individual enters into possession of land under a
It is said that this case does not raise the question, and that the only point there decided is, that use and occupation will not lie, but we do not so consider it. The court undertook to decide, not only what action would not lie, but what would, and for all useful purposes of the decision, as a matter of practice which the court undertook to establish, the one point is as essential as the other. The only objection we take to the case, is, that while we consider it high authority that trespass will lie, we doubt much whether the decision that use and occupation will not, is sound law. The doctrine that the plaintiff may waive the tort, and bring his action of contract on implied promise where the defendant has had the use or avails of the plaintiff’s property, has long been established as a well settled general rule, and if there is any case in which it is applicable it would seem to be this. We hold, therefore, the better opinion to be, that the plaintiff, on the principle adverted to, has a right of election — that he may commence his action of trespass or may waive the tort if he chooses, and go upon the implied prorniseto account.
The case of Bancroft & al v. Wardell, 13 Johns. 489, fully sustains the doctrine laid down in the case of Smith and .Stewart that trespass will lie.
On the score of authority, therefore, we see nothing to prevent the maintenance of this action ; and as a matter of principle we know no reason why an individual who has had permission to enter upon land in consideration of his agreement to purchase should be permitted to violate the condition under which that permission was granted, without forfeiting any benefit for which the privilege would otherwise have availed him. If he avoids the contract he does it entire ; the law holds him in as with
The instruction to the jury was right, and there must be
Judgment on the verdict.