Spear v. Stacy

The opinion of the court was delivered by Bennett, J. This case having been referred under a general rule of reference, no questions of law are before us, except such as are saved by the referee. The referee finds that there had been a breach of the condition of the bond when the suit was brought, and that Spear was subjected to damages by being compelled to furnish window blinds, and also to get them hung, at an expense of some seventy dollars ; but this expense accrued after the suit was commenced. We think these expenses should be in-eluded in the assessment of damages, and this is the only question referred to the court. Treating the bond, as a bond of indemnity, it was sufficient to sustain the action, that there had been a breach of its condition, when the action was brought. It is not material that all the damages should have, in fact, resulted to the plaintiff when he commenced his suit. There can not be successive actions on this bond, and unless the damages could be assessed up to the time of trial, there would be a failure of justice. Damages on bonds of indemnity are always assessed up to the time of trial. So, in actions on covenants against incumbrances, if the incumbrance is removed between the commencement of the action and the time of trial, the sum paid to remove it, goes to make up a part of the damages, which otherwise might have been merely nominal. The judgment of the county court is affirmed.