In an action by the purchaser for deceit in the sale of land, the jury will not be instructed to return a verdict for nominal damages, for the reason that the plaintiff has failed to pay off a mortgage on the premises conveyed, which he assumed and agreed to pay as part of the purchase-money. But, the mortgage debt being fully due, judgment will not be entered on a verdict for the actual damage until the plaintiff performs his agreement by paying off the mortgage.
DOE, C. J.
There is no occasion for a new trial. The facts are found, and the proper judgment will be rendered in due time. The mortgage debt is due; the plaintiff agreed to pay it; and he should not have judgment before he performs his agreement. When he performs it, he will be entitled to his actual damages. The rights of both parties will be protected at the trial term. Roberts v. Peavey, 27 N.H. 477, 502; Stone v. Clough, 41 N.H. 290, 300; Heywood v. Hartshorn, 55 N.H. 476, 483; Hobbs v. Hobbs, 58 N.H. 81; Moore v. Kidder, 58 N.H. 115, 116; Taft v. Barrett, 58 N.H. 447, 458; Marston v. Stickney, 58 N.H. 609, 611; Martin v. F. F. Ins. Co., 9 Vroom 140.
Case discharged.
STANLEY, J., did not sit: the others concurred.