Opinion
Decided June, 1880.
In an action for damages for withholding property from, or not conveying property to, the plaintiff, a tender of the property or part of it, or a conveyance of it or part of it, to the plaintiff, may be allowed at the trial in mitigation of damages, when such a course is reasonable.
CASE, for deceit in a sale of land conveyed by the defendant to the plaintiff. In the negotiation, the easterly line of the land was incorrectly pointed out by the defendant, whose land did not extend so far east, by a few inches, as the line he pointed out. It was claimed by the plaintiff that the defendant's erroneous representation of the location of the line was fraudulent, and by the defendant, that it was not fraudulent; that he believed the line was where he said it was. During the trial, the defendant offered, in mitigation of damages, his deed to the plaintiff of a part of the land for non-conveyance of which the suit was brought. The plaintiff introduced evidence tending to show that the proffered deed would convey nothing, because the defendant had not the title. The court excluded the deed, and the defendant excepted. Verdict for the plaintiff.
Hatch, for the defendant.
Marston Eastman and Frink, for the plaintiff.
The deed could have been received in mitigation of damages, and deposited with the clerk for the plaintiff on his refusal to accept it, if such a course would have been reasonable. Colby v. Reed, 99 U.S. 560, 566. If the defendant had acquired title to the strip of land a few inches wide, or a part of it, it might be of no value to him, and of great value to the plaintiff: and the plaintiff could not justly compel the defendant to pay full damages, and suffer a great and irreparable loss, which could be obviated by a conveyance of his title to the plaintiff in mitigation of damages. But the facts were such that the court found it unreasonable to allow the proposed conveyance.
Judgment on the verdict.
CLARK, J., did not sit: the others concurred.