The proper measure of damages for the breach of a covenant that the land should be of a certain quality, according to the practice of this State, bad been the value of the land at the time of the recovery. The Court doubted the correctness of the rule, and refused to grant a new trial, the damages not being excessive, nor more than the value of the land at the time of the covenant broken, or date of the deed and interest. [The State rule was followed in Wilson, Assignee, v. Robertson, infra, 464, but was changed the same year, 1811. See Perkins v. Hadley, 4 Hay. 143.]
Covenant, that a tract of land should be of a certain quality, and to execute a deed, which had been done some time since, but the bond or covenant retained. The declaration for breach stated that the land was not of the value covenanted.
The question with the Court and jury was whether the value of the land should be estimated at the time of the conveyance in this case or covenant broken, or at the time of rendering the verdict.
M'NAIRY, J.,
said, he had understood the practice in the State was to assess the damages in such cases according to the value at the time of the verdict, but he much doubted whether such practice was legal or not.
TODD, J. —
Cases have been decided in New York, Pennsylvania, Connecticut, and Virginia contrary to the practice here, as stated. The practice here, therefore, is very doubtful, and I am strongly inclined to think it is not law.
M'NAIRY, J. —
It would seem that we could not with propriety depart from the practice in the State without further argument.
The Court left the decision to the jury without any particular directions. The jury found a verdict for the plaintiff, and GRUNDY, for the defendant, moved for a new trial upon the ground of excessive damages.
Sed per Curiam. The damages are not excessive, nor more, it is believed, than the value of the land estimated at the time of the covenant broken, or date of the deed and interest. ( Ex relatione, Mr. Grundy.)
ORIGINAL NOTE. — The practice of the State as referred to in this case, is certainly repugnant to the authorities. Vide Act 1786, c. 4, § 5, Ird. 577; Cro. Car. 455, Humphreys v. Knight; 1 Ver. 217, Speake v. Speake; 12 Mod. 526, Berty v. Dormer, per Holt, C.J.; 3 Caines, 111, Staats v. The Executors of Ten Eyck; Bender v. Fromberger's Executors, Supreme Court of Pennsylvania, January, 1807, 4 Dall. 436; Hen. Mun. 202, Lowther v. The Commonwealth; 1 Reeve's English Law, 444-448; 2 Bl. 1078, Flureaw v. Thornhill; Kaim's Pr. Eq. 206-225; 21 Vin. tit. Value; Cox v. Strode, Court of Appeals, Kentucky, Fall term, 1810.