43 N.H. 448 | N.H. | 1862
The case raises the question of variance or of the sufficiency of the declaration. The sealed instrument and the evidence as to the sale of the wood in the fall of 1854 seem sufficient to sustain the alleged breach in not permitting the plaintiff to cut and carry the wood; and whether the covenant is set out with technical accuracy we need not inquire. We think that a
But a breach of this covenant was not a breach of the entire contract by the defendant, for the plaintiff might have treated his readiness to cut and carry the wood as equivalent to a performance of that covenant on his part. Chit. Cont. 809; Platt on Cov. 105; Clement v. Clement, 8 N. H. 214; Weld v. Hadley, 1 N. H. 295; Lord v. Tyler, 14 Pick. 156. A breach of the covenant to convey was therefore neither the necessary nor the natural consequence of this violation of the implied covenant by the defendant, and the plaintiff was not disabled from completing the agreement on his part. As no breach of the covenant to convey was shown, we need not inquire whether the rule of damages for a breach of such a covenant was correctly stated. If these views are correct, neither loss of the conveyance nor of the part of the purchase money paid by the plaintiff was a consequence of the defendant’s sale of the wood, and therefore the measure of damages was incorrectly given to the jury. The plaintiff- would be entitled to recover the damages that necessarily result from a breach of the implied contract, which would seem ordinarily to be the loss of profits on the work, and also any other damages naturally resulting from such breach, if properly alleged. But in the present case, as he could treat his readiness to perform as equivalent to performance, no such loss' of profits was necessarily or naturally consequent upon the plaintiff’s refusal to permit him to cut and carry the wood : and as no other damages are shown, the plaintiff, as the case now stands, is entitled to nominal damages only. The plaintiff might have entitled himself to a conveyance by fulfilling his other covenants, treating the one as to the cutting and carrying of the wood as fully performed, or he might at the proper time have rescinded the whole contract and recovered the money that he had paid, and the value of the labor which he had performed in cutting and carrying the wood; but he has done neither. As no question of rescission of contract arises here, we have not -considered whether the plaintiff had waived his right to rescind. The verdict must be set aside and a
New trial granted.