Briggs v. Morse

Pardee, J. Morse, the defendant, sold and transferred the property described in the declaration in January, 1871. We think that the finding of facts imports that he was the owner and possessor of personal property both in New Haven and in Wallingford, sufficient for the payment of the tax thereon, and which could have been found, for a sufficient length of time to outlast the statutory tax lien upon said transferred estate; and that there was no tax incumbrance upon said propei’ty at the time of the payment made by Bridget Galvin. The plaintiff has paid no part of the tax in question ; he has paid nothing toward the extinguishment of the incumbrance, the existence of which he complains of as a breach of the defendant’s covenant. His damages therefore in this action must be nominal merely. Prescott v. Truman, 4 Mass., 631; Taft v. Adams, 8 Pick., 547; Davis v. Lyman, 6 Conn., 254. As a general rule this court will not grant-a new trial to enable a party to recover nominal damages. Without considering the question of the existence or nonexistence of an incumbrance, we think there is nothing in the present case to induce us to make it an exception to that general rule. Gold v. Ives, 29 Conn., 123; Cooke v. Barr, 39 Conn., 296. The real point of the complaint in the declaration, so far as substantial damages are concerned, is, that the plaintiff was compelled to pay in June, 1872, by the hand of Bridget Galvin, the sum of thirty-nine dollars and twenty-two cents to the tax collector, because there had continued in life up to that time a tax lien to that amount upon the premises referred to. The defence, so far as it depended upon the evidence offered as to the possession of personal property by Morse as set forth in the finding of facts, was not in the line of an admission of the truth of this particular allegation and of an avoidance of it, but was of the natui’e of a denial of the existence of any lien at the time of payment. We think, therefore, there was no error in the reception of the evidence under the general issue. We advise that no new trial be granted. [261] In this opinion the other judges concurred, except Phelps, J., who did not sit.* Footnotes [*] Judge Phelps was absent during the remainder of the term, holding a term of the Superior Court in Middlesex County.