Thе defendant alleges in his second plea that the deed or agreement upon which the declaration was founded was obtained of the defendant by the fraud and covin of the plaintiff. Eraud is charged, and must be proved to sustain this plea. If the plaintiff made a representation 'honestly to the defendant, which was material, and which proved to be false, upon which the defendаnt acted to his injury, that would not sustain a charge of fraud. An honest mistake is not a fraud. The term malo animo is treated in the defendant’s brief as meaning some criminal intеnt; but it was evidently treated in the charge to the jury as meaning simply a fraudulent intent, and that is tire sense in which the term is used as often and as appropriately as in any other.
The exceptions to the other rulings of the court, aside from those relating to the rule of damages, are waived by the defendant in argument, and we have not considered them attentively.
As to the rule of damages in this case, there is more room for argument. The rule in England is understood tо be well settled in cases of contracts for the sale of real estate, and is this: “ Where the vendee refuses to perform, the measure of damages is held to be the difference between the price fixed in the contract, and the value at the time fixеd on for the delivery of the deeds.” Laird v. Pim, 7 M. & W. 474, and cases cited.
It has been said to follow from this rule that if the propеrty does not fall in value, the vendor can recover nothing but nominal damages. But that would bе assuming that the price agreed on by the parties was the true value, which would ordinarily be the case where the trade was made in good faith.
The same was settled to be thе law of Massachusetts, after several rulings the other way, in Old Colony Railroad v. Evans,
In Maine a different rule was established, in Alna v. Plummer, 4 Greenl. 258, and in numerous cases in New York, cited in Richards v. Edick,
In this State the rule is well settled in regard to contracts for the" sale of personal property. Stevens v. Lyford, 7 N. H. 360; Woodbury v. Jones, 44 N. H. 209; Gordon v. Norris, 49 N. H. 376, and cases cited, 385, 386; Haines v. Tucker, 50 N. H. 307-313.
And we think the same rule should and must be applied in case of contracts for the sale of real estate, where the vendee refuses to receive tli'e deed and pay the price according to the contract.
In this case the defendant objects that the instructions he requested were not given, viz., that if the defendant had broken his covenant, and the plaintiff afterwards sold and conveyed the property without the defendant’s consent, the plaintiff is entitled to recover only nominal damages. The defendant having broken his contract, the plaintiff might have brought his bill in chancery to compel a specific performance, or he might bring his suit at law for damages on account of its breach. Under the instructions given, it made no difference whether^ the plaintiff had sold the land or not: its real value at the time when the defendant broke his contract was the only question. If the plaintiff had sold the land at public auction, аnd notified the defendant, he might have been estopped to say that the pi’ice obtained was not its true value. But as the case stands, the plaintiff having sold the land at privatе sale, he cannot claim that the price obtained was the true value; but as we have seen, upon the instructions given, which we hold to be correct, it became entirely immaterial whether the plaintiff had sold the land or not, or for what price. And least of all could he be required to obtain the plaintiff’s consent to the sale, which he might never hаve been able to do. Upon this , general subject of the rule of damages in this class оf cases, limited to contracts for the purchase of real estate, see Sedgwick on Damages 203, and cases; 2 Parsons on. Contracts (4th ed.) 506, and cases cited.
Judgment on the verdict..