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. |
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:
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 .
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, ...
To continue reading
Request your trial-
Kohlenberger, Inc. v. Tyson's Foods, Inc.
...Judgments, Second Edition, 133, § 91 (1902); Wileman v. Mayor and Aldermen, 29 Tenn.App. 172, 195 S.W.2d 325 (1946); Garrard v. Dollar, 49 N.C. 175 (1856), 67 Am.Dec. 271; McClelland v. Climax Hosiery Mills, 252 N.Y. 347, 169 N.E. 605 Kohlenberger contends that Tyson was not entitled to rec......
-
De Hoff v. Black
...Express Co., 178 N.C. 235, 100 S.E. 307; Hollifield v. Tel. Co., 172 N.C. 714, 90 S.E. 996; Lee v. Knapp, 90 N.C. 171; Garrard v. Dollar, 49 N.C. 176, 67 Am. Dec. 271; R. C. L. 667. A judgment by default final as authorized by C. S. § 595, as amended by Pub. Laws 1929, c. 66, is different i......
-
Shields v. Early
...it is necessary to ascertain the damages by proof. Tripp v. Bishop, 56 Pa. St. 427; Headrick v. Kirke, 168 Mich. 149; Garrard v. Dollar, 67 Am. Dec. 271. we submit that the demurrer should be overruled and this cause should be reversed. Chapman & Johnson, for appellee. We shall discuss only......
-
Hoff v. Black
...Co., 178 N. C. 235, 100 S. E. 307; Hollifield v. Tel. Co., 172 N.C. 714, 90 S. E. 996; Lee v. Knapp, 90 N. C. 171; Garrard v. Dollar, 49 N. C. 176, 67 Am. Dec. 271; 15 R. C. L. 667. A judgment by default final as authorized by C. S. § 595, as amended by Pub. Laws 1929, c. 66, is different i......