5 Conn. 222 | Conn. | 1824
For the objection made in the argument, on the ground of variance between the allegations and the proof, I think there is no foundation. The Tolland farm was the entire consideration of the agreement between the parties, and in his declaration, the plaintiff has alleged it to be such. The permission to take away the grain from the land sold, was
The rule of damages on the breach on an express contract, has long been established; and whether it relate to real or personal estate, it necessarily must be the same. Whenever a person, on legal consideration, agrees to do a certain act, and in the event of his not doing it, the damages are not stipulated by the parties, the law, on the ground of reason and natural justice, implies, that the person in default shall pay the damages accruing from the non-performance. The object of the parties ought to be attained as nearly as possible; and that is, that the specific act agreed to be done, should be performed. If the party omits to do what, he stipulated, it is just, as a reasonable substitute, that he should pay the precise value of the things, which he contracted to do; and such value to be estimated at the time, when the act in question should have been executed. The rule was correctly laid down, by Ch. J. Swift, in Bush & al v. Canfield, 2 Conn. Rep. 485. 487. “ Where a man contracts to deliver any article besides money, and fails to do it, the rule of damages is the value of the article, at the time and place of delivery, and the interest for delay.” The reason of the rule is so simple and obvious, that it has been universally embraced, except in the case of stock contracts; and the anomaly, in such cases, has arisen from the specific relief, which chancery had been in the habit of giving, and which courts of law, not universally, but in most instances, have, in substance, thought proper to pursue. Whenever a case on this subject occurs, I shall be desirous of putting an end to this exception without cause, by the establishment of perfect uniformity; as no just reason can be assigned for any discrimination. Shepherd & al. v. Hampton, 3 Wheat. 200. Pitcher v. Livingston, 4 Johns. Rep. 1. Watkinson v. Laughton, 8 Johns. Rep. 213. Amory & al. v. McGregor, 15 Johns. Rep. 24.
The consideration of the contract is never the rule of estimating the damages for the breach of an express agreement.— When by reason of a failure on the part of one of the contracting parties, or other legal cause, the contract is rescinded, either absolutely, or at the election of the party injured, he may bring his suit for the consideration, and then it will be the measure of damages. But so long as the contract is open, and the action, as necessarily must be, and as in this case it is, is brought upon it, the sum recoverable is the value of the thing stipulated, at the time when and the place where it should have been performed.
The rule of damages prescribed by the judge, was manifestly incorrect. The value of the Tolland farm did not bear on the point of damages. Besides, interest from the date of the contract, was entirely inadmissible. The cause of action originated sometime posterior to the entering into the agreement, upon demand made by the plaintiff, succeeded by the defendant’s non-performance; and from this period only could the interest be allowed. Thompson v. Stewart, 3 Conn. Rep. 171.
New trial to be granted
