Blossom v. Knox

Howe, J. The writ in this cause has brought before us the record of a judgment rendered in the county court of Milwaukee county, in an action upon the covenants of a certain lease executed by the plaintiff to the defendant in error. Upon this record several errors are assigned, only two of which does it become necessary for us to notice. [266] The breaches assigned by the plaintiff below are traversed by eight pleas, the first four of which are denied, and the last four are affirmed by the verdict of the jury ; and upon this verdict the defendant below moved for judgment non obstante. The motion was overruled and that is the alleged error which we first notice. We think the motion was properly denied. It is said, indeed, that the last four pleas answered the whole declaration, and being affirmed by the verdict the defendant was entitled to judgment thereon, notwithstanding the finding upon the other issues. But we are very clearly of opinion that those pleas do not answer the whole declaration, and it is to me quite doubtful if they will answer any material part of the declaration. On the contrary, I am inclined to regard the 5th, 6th, 7th and 8th pleas as admirable specimens of that kind of traverse which pleaders have characterized as faulty by reason of being too large. A traverse is said to be too large when it involves in the issue, quantity, time, place or other circumstance, which, though forming part of the allegation traversed, are immaterial to the merits of the cause. 1 Chit. Pl., 621; Steph. Pl., 286. These pleas do not put in issue merely the substance of the plaintiff’s averment by denying simply, the right of Sayer to occupy in manner and form, etc., but they deny his right to occupy for the time and under the “parol lease” as stated, neither of which circumstances seem to me material to the plaintiff’s right of recovery, though the first might affect the amount of his recovery. But however this may be, it is a sufficient answer to this motion, that the acts of the defendant himself are well assigned for a breach of his covenants as set up in the plaintiff’s declaration. This breach is distinctly traversed by the defendant in the first four pleas, with great amplitude of form and expression. And the issue taken upon each of those pleas has been. [267] found for the plaintiff. We cannot think the defendant was entitled to judgment against that finding. But although we cannot for these reasons pronounce judgment for the defendant, we must reverse that entered for the plaintiff, because the rule given to the jury, by which to estimate the plaintiff’s damages, was erroneious. The doctrine of the courts of this country, as to the true measure of damages in actions of this nature, is not entirely harmonious. And it is not to be denied, that the rule submitted by the learned judge who tried this cause below is strongly fortified by the principles of abstract justice, and has received besides, the sanction of some judges of the very highest respectability. But the weight of authority has approved another rule, to wit: that in actions for the breach of the covenants of seizin and warranty, the plaintiff’s recovery will be limited by the consideration paid and the interest thereon ; and to this rule this court has already yielded the sanction of its authority. Rich v. Johnson, 2 Pin., 88 ; see also Staals v. Ten Eyck's Fx’rs, 8 Caines, 111; Pitcher v. Livingston, 4 Johns., 1; Kelly v. Dutch Gh., Schenectady, 2 Hill, 105; Bender v. Fromberger, 4 Dali., 441. The judgment of the county court is reversed and the cause remanded.