Farwell v. Bean

Watson, J. Only one question is presented in argument on the exceptions. It is urged that an erroneous rule of damages was adopted in the court below in allowing the plaintiff to recover the amount of the value of the premises at the time of his eviction and interest thereon. Herein the defendant has no cause of complaint. The rule applied is the one established in this State, except that there may be added to the value of the land the costs and expense of the action of the eviction, when any are shown. Williams v. Witherbee, 2 Aik. 329; Park v. Bates, 12 Vt. 381, 36 Am. Dec. 347; Pitkin v. Leavitt, 13 Vt. 379; Brown v. Taylor, 13 Vt. 631, 37 Am. Dec. 618; Keith v. Day, 15 Vt. 660; Turner v. Goodrich, 26 Vt. 707. The defendant brings his petition for a new trial on the ground of newly discovered evidence tending to show that the land conveyed by him to the plaintiff is not in fact any part of the -land owned by the Propagation Society. But the fact that the land conveyed to the plaintiff by the defendant was the same land held by him subject to the lease from the society and the payment of rent thereunder, was determined by the judgment in ejectment; and the defendant here being vouchee in that suit, the judgment is conclusive upon him in this subsequent action against him for breach of his covenant of warranty. Keith v. Day, Pitkin v. Leavitt, and Brown v. Taylor, cited above. It follows that the so-called newly discovered evidence is not admissible and can form no basis for a new trial. Judgment affirmed. Petition for neto trial dismissed with costs.