The opinion of the court was delivered by
This demurrer is obviously based on the erroneous assumption that the plaintiff must
According to the decision of this court in Finley v. Simpson, 2 Zab. 311, the deed disclosed in the declaration was the deed of the defendant, although not executed by him, and, consequently, the stipulations thereby entered into on his part were his covenants. One of such agreements was that he would pay the money due, and to grow due, on the plaintiff’s bond, and the payment of which was secured by the mortgage encumbering the premises conveyed. That covenant is an absolute one to pay a certain sum of money, and the obligation to pay was entirely disconnected with any act to be done, or with any event to happen in the future. The assumed duty was to pay the stipulated money within a reasonable time, and by the failure in performing that duty the covenant was broken. As, therefore, on the breach of a covenant, the law implies nominal damages at least, actionable misconduct on the part of the defendant is shown in the declaration. ' ,
From what has been said, the inference is not, however, to be drawn that there is' any purpose to intimate what rate of damages should be given to the plaintiff on the facts disclosed. The defendant did not covenant to pay this money to the plaintiff, but to the mortgagee, and it is the injury received by the plaintiff from the non-performance of that agreement for which he is to be indemnified. This branch of the subject is not before the court.
The plaintiff is^entitled to judgment.