Damages in case of eviction from part of the land. Deed is conclu money. Where there has been an eviction of part of the land sold, the mode in which damages are to be assessed will vary according as the failure of title takes place as to an undivided share of the land, or to an ascertained portion of it. In the former case, the vendor must refund an aliquot part of the purchasemoney, according to the fractional part lost by the purchaser. In the latter case, evidence may be given of the quality of the specific piece from which the plaintiff has been ejected, and the law will apportion the damages to the measure of value between the land lost and the land preserved (). Where the land is only held on lease, and there is a partial eviction by title paramount, the rent will be apportioned (k). The damages then ought, according to the principle laid down before (7), to be the value of the part evicted for the unexpired portion of the term; that is, the difference between the rent which would have been paid, and the profits which would have been made. Where, however, the eviction is by the lessor himself, or any one claiming through him, there is no apportionment, but a complete suspension of all subsequently accruing rent (m). Would this make any difference in the claim for damage? Where the damages are to be calculated upon the basis of sive as to amount the purchase-money, its amount if stated in the deed of conof purchaseveyance, cannot be contradicted by parol evidence. "Where any consideration is mentioned, if it is not said also, and for other considerations,' you cannot enter into any proof of any other: the reason is because it would be contrary to the deed ; for when the deed says, it is in consideration of such a particular thing, that imports the whole consideration, and is negative to any other" (n). On the same principle evidence cannot be given that it was really smaller than is stated, or that it was never paid at all (o). One case may seem contra (i) Per Kent, C. J., Morris v. Phelps, 5 Johnson's Rep. 49, 55. [Brandt v. Foster, 5 Clarke (Iowa), 287. In one case in America, for the purpose of reducing the damages to a nominal sum, parol evidence was admitted to show that nothing was in fact paid for the specific piece, and that it was included in the conveyance by mistake; Nutting v. Herbert, 35 New Hamps. 120.] (k) Smith v. Malings, Cro. Jac. 160; Stevenson v. Lambard, 2 East, 575; Boodle v. Cambell, 7 M. & Gr. 386. (1) Williams v. Burrell, 1 C. B. 402, ante, p. 144. (m) Morrison v. Chadwick, 7 C. B. 266. (n) Per Lord Hardwicke, Peacock v. Monk, 1 Ves. Sen. 128. (0) Rowntree v. Jacob, 2 Taunt. 141; Baker v. Dewey, 1 B. & C. 704. [But equity a recital that purchase-money has been paid may be shown to be not dictory, but is really not so. A deed containing a general release of all debts, recited that the releasee had previously agreed to pay to the releasor the sum of 407., and that "in consideration of the said sum of 401. being now so paid as herein before is mentioned," and also in consideration of certain other payments to him and J. S., "the receipts of which said several sums they did hereby acknowledge," he the plaintiff releases the defendant from all demands, &c.; the action was for the 407. which it was proved had never been paid. It was held that the words of the deed formed no estoppel, as the general words of the release were qualified by the recital, and that the sentence ought to be read, "In consideration of the sum of 407. being now so agreed to be paid as aforesaid;" while the subsequent words of receipt referred more properly to the payments which were to be made to the releasor and J. S. (p). further assur ance. [In the case of a covenant for further assurance the whole Covenant for value cannot be recovered till the ultimate damage is sustained. And if no damage is suffered in the lifetime of the ancestor, the action must be brought by the heir and not by the executor (q).] incumbrances. The last species of covenant we shall notice under this head Covenant against is the covenant against incumbrances. There seems to be no difference in principle between a covenant against incumbrances, and a covenant to pay them off. If so, the point is decided in England. The action was by the trustees of the defendant's wife on a covenant to pay off incumbrances to the amount of 19,0007. They had paid nothing themselves, and no special damage was laid or proved; it was held that the full amount of the incumbrances might be recovered. Lord Tenterden, C. J., said, "If the plaintiffs are only to recover a shilling damages, the covenant becomes of no value." And Patteson, J., said, "At law the trustees were entitled to have the estate unincumbered; how could that be enforced, unless they could recover the whole amount of the incumbrances in true; Wilson v. Keating, 4 De Gex & J. 588; 27 Beav. 121; 28 L. J. Ch. 895.] (p) Lampon v. Corke, 5 B. & A. 606. [(q) King v. Jones, 5 Taunt. 418, 428. The paragraph in the text is printed from the appendix to the first edition of this work.] an action on the covenant?" (r). The rule in America is different. There it is held that the damages are merely nominal, unless the plaintiff has paid something to their discharge (s). But that when he has extinguished the incumbrances he is entitled to an indemnity (t). I conceive that the rule laid down by the Court of King's Bench is the true one. The damages are not, as Mr. Sedgwick seems to suppose, given in respect of a future contingent loss. They are the proper compensation for an actual and existing loss. The question is, how much is the value of the estate diminished at the moment by the existence of the incumbrances? If interest has to be paid upon them, there is a clear loss of annual profit; but suppose the interest is provided for elsewhere, and the estate is merely an ultimate security, still the owner is damnified to the full amount of the incumbrances, if he should wish to sell the estate, to mortgage it, to settle it, or to charge portions upon it. True, he may not want to do any of these things at present, but as soon as he does want to do them, he will undoubtedly fail. It is no satisfaction to a man who has to break off a match, for instance, because he cannot effect a settlement, to be told that he may now bring an action, and obtain substantial damages. Nor is it any answer to say that he may himself pay off the incumbrance, and then sue; because very likely he may have no ready money, and be unable to borrow any, on account of the incumbered condition of his estate; in short the American doctrine converts a covenant to pay off incumbrances into a covenant of indemity against incumbrances, which it is apprehended is a very different thing. Where, however, both present and contingent loss are (r) Lethbridge v. Mytton, 2 B. & Ad. 772. [The author adds, in his appendix to the first edition, "Where an action is brought on a covenant against incumbrances, and the incumbrance is not necessary but only a contingent one, which may never occur, the damages will be nominal; Vane v. Lord Barnard, Gilb. Eq. Rep. 7."] (s) Prescott v. Truman, 4 Mass. 627; [Grant v. Tallman, 20 N. Y. 191. But where the representation that the property was incumbered was made fraudulently, the amount of the mortgage was recovered; Haight v. Hayt, 19 N. Y. 464.] (t) Delavergne v. Norris, 7 Johnson's Rep. 358; Hall v. Dean, 13 Johnson's Rep. 105. Cases where the grantee has been actually evicted in consequence of the breach of covenant, of course come under different rules. See all the cases, Sedg. Dam. 185-190. negatived, the damages will obviously be only nominal; for instance, when at the time of trial the incumbrance has ceased to exist, and its removal has caused no expense to the plaintiff (u). [The amount of damage recoverable for a breach of covenant Covenant to to renew was much discussed in a case in Ireland (x). The renew. covenant was treated as not involving a contract that the renewal would confer a good title (y), and it followed as a necessary consequence that the value of the renewal, for withholding which damages were to be assessed, depended partly on the value of the land and partly on the title of the lessor. It was considered that if the lessor had no title or estate out of which a valid renewal could have been carved, the lessee lost nothing by the non-renewal, for under such circumstances a renewal would have been valueless (2).] (u) Herrick v. Moore, 19 Maine, 313; [Smith v. Jefts, 44 New Hamps. 482.] [(x) Strong v. Kean, 13 Ir. L. R. 93 Ex. Ch.] [(y) Ib., per Pigot, C. B., at p. 146.] [() Ib., and see per Crampton, J., at p. 128.] Extras. 1. Work and labour. CHAPTER VI. 2. Contracts of hiring and service. NEXT to contracts of sale, probably the most common species of contract is that by which the labour of others is purchased for a limited time. Agreements of this sort are entered into with a view to the performance of a particular work, or the procuring of a certain amount of service, and the remuneration to the other party resolves itself into the price of the work, or his own wages or salary. I. As to contracts for work and labour. This case will be simple enough where the work has been done according to the contract. The measure of damages will be the contract price if any, or the value of the thing, if no price has been fixed. Where the work consists partly of work done under a special contract, and partly of extras added subsequently, the plaintiff may recover for the latter at once, on a quantum meruit, even though the time for paying for the work under the agreement has not arrived. And a quantum meruit is the only way in which such extras can be sued for, unless there has been a special contract to meet them (a). In such an action the original contract must be put in stamped, that it may be seen what work was extra (b). Where there has been a contract for a specific work at a settled price, and deviations have been subsequently agreed on, the employer is not liable beyond the amount stipulated, unless he was in (a) Robson v. Godfrey, 1 Stark. 275. [See as to the effect of special contracts, Ranger v. Great Western Ry. Co., 5 H. L. Ca. 72; Russell v. Sa da" Bandeira, 13 C. B. N. S. 149; 32 L. J. C. P. 68; Stadhard v. Lee, 3 B. & S. 364; 32 L. J. Q. B. 75.] (b) Buxton v. Cornish, 12 M. & W. 426; but see Edie v. Kingsford, 14 C. B. 759; 23 L. J. C. P. 123. |