#### Merryman v. Criddle.

Argued March 7th, 1815.

i. Covenant — Breach of Executory Contract — Assessment of Damages.'* — Upon a declaration in covenant, charging in general terms the breach of a contract to deliver a quantity of corn at a given time; the jury, in assessing the damages, are not restricted to the value of the corn at the time when it should have been delivered, with interest thereon until payment; but may give such damages as, upon the evidence, the plaintiff appears to have sustained.

This was an action of covenant, in the county court of Cumberland, upon a writing in these words ; — “On or before the 25th day of December next, I promise to pay, or cause to be paid, unto Mr. John Criddle, twenty-five barrels of good corn, to be delivered at Mr. Edward Merryman’s. Witness my hand and seal, this 5th day of August, 1809 — Pleasant Merryman.” The declaration charged a breach, “in this, that the defendant did not, on or before the said 25th of December, deliver to him, the plaintiff, the said 25 barrels of good corn, at Mr. Edward Merry-man’s, or elsewhere, but the same to deliver hath refused, and still doth refuse.” Plea “conditions performed.”

At the trial, the defendant admitted his breach of the contract, and moved the court to instruct the jury, that the proper measure of damages was the price per barrel at the time the corn was by contract to be delivered, with interest from that time; which the court refused to do, but submitted to the jury to determine the proper measure of damages, on the testimony before them ; whereupon the defendant excepted to the court’s opinion. The jury found for the plaintiff, and assessed his damages to one hundred dollars. Judgment was rendered accordingly, and, on a writ of supersedeas, was affirmed by the superior court of law ; from which the defendant appealed to this court.

Nicholas, for the appellant,

relied on the cases of Groves *v. Graves, 1 Wash. 1 ; Bull v. Douglas, administrator of Turnbull, ante p. —; and Rose v. the Commonwealth, decided in 1804, as proving that the county court ought to have given the instruction requested. It may be said, that the jury might, from circumstances, have given greater damages : but I cannot imagine any which ought to vary the rule. However, if any such existed, they do not appear in the record. None are shewn by the plaintiff. And, indeed, it was not competent for him, under his general assignment of the breach, to go into evidence of special circumstances to increase the damages. Such a practice would be calculated to ensnare and entrap the defendant, (a)

Samuel Taylor contra.

The value of the corn, on the day on which it ought to have been delivered, does not appear to have been the proper measure of damages. There might have been evidence before the jury, shewing that justice required a different measure. Suppose it had been proved that, by the rapid rise in the price of corn, the defendant made a profit in failing to comply with the contract or that the plaintiff was compelled to buy it of others at an higher price than was current on the 25th of December ; would it not have been proper to allow him higher damages ? Indeed, what motive could the defendant have had, in this case, for waiving his plea of covenant performed and insisting upon the value at the day, unless he had made a greater profit than the amount of that value ? Such a measure of damages would be a temptation to the defendant to violate his contract.

No such general rule has been established as that laid down by Mr. Nicholas. Groves v. Graves, was a case in equity, determined on its own circumstances, and in which no special damage was shewn. In that case too, and in Bull v. Douglas, administrator of Turnbull,(1) the contracts were for the delivery of certificates, and transfer of stock, which partake *more of the nature of money than corn does. A different rule ought to apply in such a case as this.

The proper measure of damages is a complete satisfaction to the party injured.(b) And that measure, in all controversies of this nature, is so connected with the evidence, that both must be referred to the same tribunal, (c) In covenant, the breach may be assigned in words as general as those of the covenant, or in the words of the covenant ; — and the damages will be whatever the party can prove he has actually sustained, (d) The rule in covenant is different from that in the action of debt. The reason of this difference I do not perceive ; but it is sufficient for my purpose that it exists in the books.(2)

*265Nicholas in reply.

Since it does not appear that any evidence of special circumstances was offered, this court will not presume that there was such evidence. If it had been offered, it would have been incumbent on us to have excepted to it.

In Bull v. Douglas, administrator of Turnbull, the rule is laid down as a general one, wherever the article contracted for is of uncertain value. Its being a case in equity makes no difference ; for equity and law agree in the construction of contracts.

The same principles apply to contracts for the delivery of corn, as to contracts for the delivery of certificates, and transfer of stock.

December 7th, 1815,

*

See principal case cited with approval in Christian v. Miller, 3 Leigh 83. See generally, mono-graphic *note*on “Covenant, The Action of” appended to Lee v. Cooke, 1 Wash. 306.

(a)

*1*Chitty on Pleading's, 332, and 386.

(1)

 Note. In Bull v. Douglas, administrator of Turnbull, also, there was no proof of special damage. — Note in Original Edition.

(b)

 2 East *211,*-Shepherd v. Johnson; 3 Bl. *Com.*156.

(c)

 2 Bac. 266.

(d)

 1 Lord Raym 107, Brigstock v. Stanion; Bull. N. P. 163; 2 Bac. 84 note a.

(2)

 Note. See Craghill &c. v. Page &c. 2 H. & M. 446; and Winslow &c. v. the Commonwealth, Ibid 450; Buster’s Executor v. Wallace, 4 H. & M. 82; Ward v. Johnston, 1 Munford, 45.

the court affirmed the judgment.

JUDGE CABEEE,

assigned the reasons for his opinion, as follows :—

I have no doubt, that, in actions for the breach of executory contracts, the general rule is, that the value of the articles *to be delivered, at the time when they should have been delivered, with interest from such time of delivery, forms the proper measure of damages. But to this rule there may be exceptions, founded on particular circumstances. The appellant in this case had a right to ask of the court an instruction to the jury as to this general rule ; and if he had asked it, and the court had refused it, there would have been sufficient cause to reverse the judgment. I was, at first, inclined to believe that he had asked no more : but, upon a more attentive examination of the bill of exceptions, it appears that other evidence was before the jury ; and, possibly, there might have been evidence of some of those circumstances constituting an exception to the general rule. In asking the court, therefore, to instruct the jury, that the proper measure of damages in this case was the value of the corn at the time when, by the contract, it should have been delivered, with interest thereon, he required not only a declaration of the general rule, hut a decision of the court upon the testimony, the peculiar province of the jury. Had he stated in the bill of exceptions the whole of the circumstances, he might have required the opinion of the court, whether, admitting those circumstances, they were sufficient to take the case out of the general rule. Not having done so, I think the court rightly refused the instruction that was asked, and am for affirming the judgment.