Low against Archer

Low against Archer. Where the plaintiff on a purchase of land from the defendant, for which he was to pay in six years, at the request of the latter executed his bond and a mortgage on the premises to a third person for the amount of the price, payable the one-half in three and the other in six years, and the defendant covenanted to pay the first installment on the mortgage, and to indemnify the plaintiff against all damages, costs and expenses by reason of its enforcement before the expiration of six years; and the defendant omitted to pay the first installment when due, and the plaintiff, being notified that if it was not paid the mortgage would be foreclosed, and not having the money, was compelled to and did pay a person $60 for his services in procuring a party to advance the amount secured by the mortgage, upon its being assigned to him; Held, that .the plaintiff could not recover the sixty dollars on the covenant of the defendant. The terms, damages, costs and expenses, in a covenant of indemnity against the payment of a demand, do not cover a premium or bonus which the party is compelled to pay to raise the amount of the demand. . On the 6th of March, 1847, the plaintiff and the defendant executed an agreement under seal, in which it was recited that the defendant had contracted with one Milbank to purchase from him a lot of land situate in Albany, and to secure $1200, a part of the purchase price, by his bond and a mortgage on the lot, conditioned for the payment of one half of the amount in three and the other in six years from the 6th of March, 1847, with interest on the whole, payable semi annually; that the defendant had resold the lot to the plaintiff, and agreed with him that he should have six years for the payment of the principal sum of $1200, and that the plaintiff had, at the request of the defendant, cotemporaneously with the agreement, accepted a conveyance of the lot from Milbank, and executed to the latter his bond and a mortgage on the lot, conditioned for the payment of the $1200 and interest, according to the terms of payment provided in the contract between the defendant and Milbank, as above stated in the recital. After this recital, the defendant by the agreement covenanted that he would advance and pay to Milbank “the first installment of six hundred dollars on the mortgage, and that he would indemnify and save harmless the plaintiff from all damages, costs and expenses, by reason of the enforcement thereof sooner than after six years from the date of the agreement.” In March, 1852, the plaintiff brought this action in the Albany mayor’s court. In the complaint this agreement was set out, and the plaintiff alleged that the defendant did not advance and pay to Milbank the first installment of $600 mentioned in the mortgage ; that by reason of his omission to do so, Milbank enforced the collection of this installment against the plaintiff, who was compelled to and did, in May, 1850, pay the same with interest; that the damages, costs and expenses to the plaintiff, by reason of the enforcement of the mortgage sooner than after six years from the date-of the agreement, amounted to $60; which sum was paid by the plaintiff, but which the defendant neglected and refused to repay him. The defendant by his answer denied that the plaintiff had paid anything on the mortgage, or that he had sustained any damages by reason of its • being enforced. On the trial, before the recorder of Albany, the plaintiff proved by a witness that he was an attorney; that about the time the first installment of the mortgage became due, Milbank left it with him to be foreclosed; that he informed the plaintiff that the mortgage must be foreclosed if the amount due was not paid ; that the plaintiff being unable to raise the amount employed him, the witness, to do so, and that he procured a person to advance the amount secured by the bond and mortgage, and to take an assignment of them from Milbank; that he had considerable trouble in getting a person to make the advance, and that he charged the plaintiff and the latter paid him for his services sixty dollars, and that his services were worth that amount. This evidence was objected to by the counsel for the defendant, but the recorder overruled the objection and allowed it to be given, and the counsel for the defendant excepted. At the close of the evidence the counsel for the defendant requested the court to nonsuit the plaintiff on various grounds, and among others on the ground that there was no evidence that the plaintiff had sustained any damages, costs or expenses by the enforcement or threatened enforcement of the mortgage. The motion was denied and the defendant’s counsel excepted. The recorder found that the defendant did not advance and pay to the mortgagee the first installment of $600 on the mortgage, and that the mortgagee enforced the same sooner than six years from the date of the agreement, and that the plaintiff sustained and paid damages, costs and expenses by reason thereof, to the amount of $60; and he rendered judgment against the defendant for this amount with interest and costs. On appeal this judgment was affirmed by the supreme court in the third district. The defendant appealed to this court. L. Tremain, for the appellant. I. There was no breach whatever shown of the covenant to “indemnify and save harmless the plaintiff from all damages, costs and expenses by reason of the enforcement of the mortgage.” The parties evidently contemplated a legal proceeding to compel the payment of the mortgage. Such is the import of the word enforcement. (Cumpston v. McNair, 1 Wend., 460; Crippen v. Thompson, 6 Barb., 536.) II. Evidence that on being threatened with an enforcement of the mortgage, the plaintiff employed and paid a man $60 to find the purchaser of the mortgage was improperly admitted. Money paid to a broker, or usurer, under the circumstances in this case, is not a proper item of damage. (Sedgwick on damages, 63, 75; 2 Greenleaf Ev. § 256; Deyo v. Waggoner, 19 J. R., 241.) W. L. Learned, for the respondent I. The cases cited by the appellant are not analogous to this case; here there is an express agreement by the appellant to pay the installment, and the respondent is entitled to recover his damages for a breach of that agreement; those damages have been found by the court below, and this court will not disturb the finding upon a question of fact. (3 Den., 321; Thomas v. Allen, 1 Hill 345.) II. The plaintiff was entitled to recover the $60 as damages. (Webb v. Pond, 19 Wend., 423; Churchill v Hunt, 3 Denio, 321.) [MAJORITY — Dean, J.] Dean, J. Were we to decide this case on the grounds taken on the motion for a nonsuit, I should think the judgment should be- affirmed although the judgment is wrong in amount. Because the plaintiff was for the breach of the agreement entitled to nominal damages at any rate, and therefore the nonsuit was properly denied. The plaintiff cannot, however, recover on the allegation in his complaint, that he sustained damages to the amount of $60 by reason of the enforcement by the mortgagee of the payment of the $600. It cannot be pretended that the installment has been paid. The assignee of the mortgage can at any time enforce it against the property, or obtain judgment for the amount by action on the bond against the mortgagor. It is clear, therefore, that there can be no recovery in this action for any part of the principal sum as, paid by the plaintiff, nor can there be any recovery for the $60 brokerage paid to procure a person to take an assignment of the mortgage. There was no enforcement, within the legal signification of that term, of the payment of the installment of $600. There is, however, one part of the complaint on which the plaintiff was entitled to recover, viz: that in which he claims damages against the defendant for his failure to perform his agreement to pay to the mortgagee the first installment. The finding of the mayor’s court on this point is full enough to sustain the judgment, and were it not for the error in admitting improper evidence, I should have no doubt that the judgment should be affirmed. It appears, however, that the witness, Sanders, in his testimony, states that the $G0 were paid him for his services in procuring a person to take an assignment of the mortgage. This was objected to and admitted, and the defendant excepted. It is manifest from this, what was the rule of damages adopted by the court below, and that rule was erroneous. The defendant had covenanted to pay this installment, or in default thereof, to pay the damages, costs and expenses to which the plaintiff might be subjected by reason of such failure to perform the covenants -of the defendant. The term, damages, costs and expenses, has a definite legal signification, and does not include any premium, bonus or sum which a person chooses to charge, or a party to pay. Damages, costs and expenses, when given as the penalty against a party for the non-performance of a contract, mean the necessary, natural and proximate damages resulting from such non-performance, and not some remote, accidental or special injury to the party to whom the right of action accrues. (Groat v. Gillespie and Gibbons, 25 Wend., 383.) Wherever special damages are recovered, it must be on a distinct and definite statement in the complaint. (Armstrong v. Percy, 5 Wend., 535.) Here there is no such statement. The plaintiff was limited, therefore, to his damages resulting from the non-performance of the contract on the part of the defendant. On another trial he may be able to show his actual damages. The judgment should be reversed and a new trial ordered. Johnson, Denio, Hand and Marvin, Js., concurred in the foregoing opinion Gardiner, C. J., and Ruggles and Crippen, Js., were in favor of affirming the judgment. Judgment reversed.