120 Mass. 514 | Mass. | 1876
Both counts in the plaintiff’s declaration are for trespass to real estate, and allege the taking and carrying away of the fixtures and other parts of a dwelling-house thereon standing. The plaintiff at the trial claimed to recover as mortgagee for the injury to his security. The defendants offered to show that after the injury complained of, and before this action was begun, the plaintiff, under the power of sale in his mortgage, sold the premises for more than enough to pay his debt and all prior incumbrances, and conveyed the same to the purchaser. The defendants’ answer was a general denial, but no question was then made or is now made as to the admissibility of the evidence under the pleadings. The judge ruled that the measure of damages was the actual amount of the injury done to the building, and excluded the evidence. We are of opinion that this evidence upon the question of damages was improperly excluded.
A mortgagee, if there is anything due on his mortgage, whether in possession or not, may maintain an action of tort, and recover the full value of fixtures wrongfully removed, on the ground that his security has been thereby diminished. Under our decisions the right to recover does not depend on proof of the insufficiency of the security; because, until the whole debt is paid, the mort
In the case at bar, evidence of the payment of the plaintiff’s mortgage and the termination of his interest in the mortgaged estate was offered by the defendant. The general rule is that damages must be precisely commensurate with the injury which the plaintiff suffers by the act of wrong at the time it was com' mitted; but under this rule the defendant is constantly permitted to give in evidence the plaintiff’s subsequent change of relar tian to the property, for the purpose of showing that the damages, to which he would otherwise have been entitled, have been thereby diminished. Thus, if he has only a special property, or a qualified interest, subject to which the defendant has acquired title, and the plaintiff can be indemnified by a sum less than the full value, that sum is the measure of damages. Chamberlin v. Shaw, 18 Pick. 278. So when in trover the property has been restored to the plaintiff, or been applied to the payment of his debts, or otherwise come to his use, the fact may be shown in mitigation of damages. Pierce v. Benjamin, 14 Pick.
Exceptions sustained.