Anderson v. Merrill Lumber & Forestry Co.

Young, J. The plaintiff rests his contention as to his right to recover his expenses as a part of his damages on the cases which hold that one who is sued may recover the expense he incurs in defending the suit, if he would not have been sued but for the defendant’s failure to perform either a contractual (Fairfield v. Day, 71 N. H. 63) or an imposed duty (Hubbard v. Gould, 74 N. H. 25), provided defending the suit was the reasonable thing to do. Winnipiseogee Paper Co. v. Eaton, 65 N. H. 13. These cases, however, are not in point. No one has sued the plaintiff, but he has sued the defendants. Notwithstanding they agreed to make his title good, they did not promise to pay the expenses he incurred in enforcing liability on their agreement; and in the absence of such a promise, all he can recover as expenses of litigation is his taxable costs. State v. Kinne, 41 N. H. 238, 240. Plaintiff’s exception overruled: Merrills’ exception sustained. Plummer, J., was absent: the others concurred.