18 N.H. 73 | Superior Court of New Hampshire | 1846
"We need not inquire, at this time, whether the plaintiff is entitled, on these facts, to maintain an action in his own name' to recover the damages which were assessed to Gleason. It is clear that Gleason’s assignment could, of itself, give only an equitable light to recover them. Whether, being assessed to a mortgagee, the payment of the mortgage money in full, by the purchaser of the equity, may not operate, in law, to transfer the right of recovery to him, is a question which would arise if the plaintiff was seeking to recover in his own name, in an action founded upon his demand, and the refusal to make payment to him. ' '
We are clear that this action cannot be maintained. The selectmen tendered the amount of the damages to Gleason, and then offered the money to the plaintiff under such circumstances as made it equivalent to a tender. This was all which they were bound to do. It is well argued by the defendant’s counsel, that upon this they
The defendant was bound by his contract to enter and construct the road, if he might lawfully do so, and the demand of the plaintiff and the refusal of the selectmen, whatever may have been the reason of that refusal, did not annul the contract, nor put the plaintiff to a claim for damages for a breach of it, on the ground that the refusal of the selectmen had deprived him of the power to perform it. The right to take the land was fully perfected by the laying out of the highway and the tender of the damages. It was not lost or forfeited by the subsequent refusal.
The plaintiff may recover the damages in some form of action, as a mortgagee may recover his mortgage money, on a subsequent demand, when -he had refused it upon a tender; although, by the tender and refusal, the land was released from the incumbrance of the mortgage.
Judgment on the verdict.