Ferris v. Mosher

The opinion of the court was delivered at the circuit session in September, by Bennett, J. The questions of law made in this case arise on the defendant’s declaration in offset. We see no objection to the charge of the court, in relation to what must be the effect of the deeds of the plaintiff to the defendant, and to Martha Ferris, in case the jury should find, that both deeds were delivered at one and the same time, and the defendant was then ignorant that the plaintiff was conveying to the said Martha Ferris her life estate or any interest in the four acres. The case in its facts is a novel one, and I am not aware of an adjudication upon the precise point; but it seems to me much more reasonable to hold that each shall have a moiety, as against the other, than that either shall hold the whole against the other. If one is to take the whole, which shall it be ? No reason can be assigned why it should be the one instead of the other. One or the other of these results must follow ; and it seems that in its effect, the legal transaction must be the same, so far as a conveyance of a title is concerneed, as if the plaintiff had given but one deed running to both the defendant and Martha Ferris. The two deeds took effect at the same time, though they cannot be regarded as parcels of one entire contract; and as the whole title passed from the plaintiff at the same instant of time, we think it passed under the effect of the two deeds, that is, a moiety to each grantee. As the necessary result, the defendant was entitled to damages on the covenants in his deed to the extent of one half the [221] value of the life estate of Maxtha Ferris, and to the extent of Daniel W. Ferris’ interest in the four acres, which, as I understand it, was equal to one-sixth in the reversion. This was the rule given to the jury by the county court. We think the payments made on account of the breaches of the covenants in the deed were properly admitted in mitigation of damages. No doubt if payment is relied upon as a lar to an action for damages for a breach of covenant, it must come in by way of a special plea; but in making up the damages, it would be extraordinary if these payments could not be considered. In Morris v. Phelps, 5 Johns. 54, it is indeed said that the rights of the parties must be determined according to the existence and extent of those rights when the action is commenced. But in regard to the extent of damages, we apprehend in many cases they may be enlarged beyond what they existed when the action was brought, and in other cases may be reduced. It is of every day occurrence in actions of assumpsit to admit on trial, upon the general issue, payments, made pending the suit, to be proved in reduction of damages. The rule should be the same in a case of this description. The judgment of the county court is affirmed.