Garrard v. Dollar

• Decision Date: 31 December 1856
• Citation: 67 Am.Dec. 271,4 Jones 175,49 N.C. 175
• Court: North Carolina Supreme Court
• Parties: JOHN W. GARRARD v. WILLIAM G. DOLLAR.

4 Jones (NC) 175

49 N.C. 175

67 Am.Dec. 271

JOHN W. GARRARD

v.WILLIAM G. DOLLAR.

Supreme Court of North Carolina.

December Term, 1856.

In an inquest of damages upon a judgment by default, nothing that would have amounted to a plea in bar to the cause of action, can be given in evidence to reduce the damages.

The measure of damages against a vendee for refusing to perform his contract for the purchase of land, (the vendor having offered to do all that the contract required of him,) is the purchase money with interest.

This was an ENQUIRY of DAMAGES upon a judgment by default, tried before PERSON, J., at the Fall Term, 1856, of Orange Superior Court.

The plaintiff offered in evidence a writing, under the hand and seal of the defendant, as follows, viz:

“This certifies that John W. Garrard and William G. Dollar, of the County and State above named, have made the following contract and agreement, to wit: That the said Dollar has purchased of the said Garrard, a certain parcel or tract of land, known as Peter's Cross-roads, at ten dollars per acre, and the line as follows, (describing the same by metes and bounds.) The said Dollar agrees, when the amount of the land is ascertained, to execute to the said Garrard, his bonds with approved security, divided into three parts equally, and payable as follows: first bond, payable Jan. 1st, 1856; second bond, payable January 1st, 1857; and the third bond, payable January 1st, 1858; all bearing interest from date. The said Garrard agrees to give said Dollar possession the 1st day of October next.” Dated 31st of August, 1855. He further proved that he and the defendant had the land surveyed before the suit was brought, and there were 287 1-4 acres; and that defendant refused to give his bonds.

The defendant offered the evidence of Cadwallader Jones, jr., Esq., that, at the date of the covenant sued on, he was the owner of the land, but that, before that time, he had contracted, in writing, to sell it to the plaintiff, and to make title whenever the purchase money was paid. Plaintiff's counsel objected to the admissibility of this evidence, but the objection was overruled, and the testimony received. Plaintiff excepted. Mr. Jones proved further that, since the alleged breach of the contract, the whole of the purchase money had been paid to him, and that during the week (then current) he had executed to him a deed for the premises in fee simple.

The plaintiff then produced and offered to file a deed to the defendant as an escrow, to take effect upon the payment of the price agreed upon for the land.

The jury found the following special verdict: “That the defendant covenanted with the plaintiff to give his bonds for 287 1-4 acres of land, at $10 per acre, and they assess his damages at $2872,50, unless their further finding, to wit, that at the time of the breach of the said covenant, the plaintiff had no title to the land, but the same was, and continued in Mr. Jones, until the present term of this Court, ought, in law, to be taken in mitigation of damages; and if it ought so to be taken, they assess the plaintiff's damages at 6 pence.”

Upon consideration whereof, the Court gave judgment for the plaintiff for six pence and costs; from which the plaintiff appealed.

Norwood, for plaintiff .

Turner and Miller, for defendant .

BATTLE, J.

We are clearly of opinion that the judgment by default precluded the defendant from using, for the purpose of reducing the damages, testimony which would have defeated the action, had a plea in bar been put in. A default admits all the material averments properly set forth in the declaration, and, of course, everything essential to establish the right of the plaintiff to recover. Any testimony, therefore, tending to prove that no right of action existed, or denying the cause of action, is irrelevant and inadmissible. 2 Sellon's Practice, 25; DeGaillon v. L'Aigle, 1 Bos. and Pul. Rep. 368; East India Company v. Glover, 1 Stra. Rep. 612; Foster v. Smith, 10 Wend. Rep. 356. In the case last cited, which was an action of trespass for false imprisonment, the principle upon which the rule is founded is well explained. “The evidence,” says NELSON, J., in delivering the opinion of the Court, “would have been inadmissible under the general issue in justification, without notice or special plea, were it not for the provisions of the statute for the more easy pleading of public officers, and those acting in aid of them, and the reasons given are to prevent surprise upon the plaintiff on the trial, and to enable him to meet the defendant upon equal terms with respect to the evidence. 1 Chitty's Pl. 493. These reasons are equally strong against allowing the evidence without notice, in mitigation of damages; besides, the inconsistency of hearing evidence in contradiction of the legal effect of the record, which is not pertinent to any issue presented by it. If this practice were tolerated, it would enable defendants to have substantially the benefit of a justification in every case in which evidence could be procured to establish it, without notice to the plaintiff of such defense;...