Gould v. Allen

By the Court, Sutherland, J. The eighth special cause of demurrer is well taken. The declaration does not shew that the plaintiff has sustained any damage by reason of the neglect or fefusal of the defendant to purchase in the farm in question at the mortgage sale. If the farm actually sold for more than the defendant was -by his contract to give for it, then the plaintiff has sustained no injury by his omission to purchase it at the mortgage sale; for it is very' clear that the defendant was not bound to bid more than the price which be was to give for the farm; that is $26 per acre, And probably the construction "of ¿he agreement, would be, that he was obliged to bid no more than the amount of the mortgage with interest and costs. The object of the stipulation on,the part of the plaintiff, was to secure a fund to pay off the incumbrances, and prevent the property from being sacrificed. The /arm is described as containing 181 acres; the defend, ant was to give $26 per acre for all the land except the road funning through the same, which was to he deducted and not paid for, How much was contained in the road is no where averred in the declaration, or set forth in the contract. The number of acres to be paid for by the defendant, is therefore entirely uncertain. If, after deducting the road, less than 123 acres were left, then the price which the plaintiff was bound to pay, at $26 per acre, would be $3198. But the farm actually produced at the mortgage sale, $3220 ; so that the plaintiff has sustained no damage, as he has realized more than the defendant was bound to advance. It is not probable that the deduction for the road is as great as I have supposed. But we cannot judicially say that it is not, [185] and ihe plaintiff is bound so aver enough to shew with all reasonable certainty;, that he has been damaged. This I think he has failed to do, and that the demurrer on that ground is well taken. The covenants are clearly mutual and independent, and the plaintiff was not bound to aver a tender of the deed as a performance of bis part. The action is not brought for the consideration money; the only breach alleged, is the neglect to advance the mortgage money. I am inclined to think there is no force in any of the other causes assigned. Judgment for defendant on demurrer, with leave to plain-? tjff to amend,