Johnston v. Atlas Mining Co.

*207By the Court,

This is a motion for a new trial based upon several grounds, and among them that the damages are excessive. It is said to be “difficult to draw a line as to the granting of a new trial; and perhaps the. granting or not granting of it must always depend upon the circumstances of the ease.” Also “ that the granting of a new trial, like the granting of a continuance, or taking off a default rests in the discretion of the Court, is fully establsihed by all the authorities. And an infinite variety of considerations which can never be brought to the test of a strict rule, ánd which must be referred to the discretion of the Judge, are the basis of determination.

In the exercise of such discretion I shall proceed to . entertain and consider the motion, but only on the point of excessive dama ges — for I must deny it as to all the others. The correct principle is, as laid down by the common law rule, that a party' can only recover such damages as he has suffered.

The evidence at the trial tended to show that the defendant never acquired a legal title to the premises in question, that there were several dependent acts to be performed mutually — as the payment or tender of moneyjand mortgage, or the delivery or ten der of a sufficient deed; and that there was negligence imputable to both parties, only differing in degree, in this behalf. Then what is the true measure of damages ? If the legal title did not pass to defendant it surely can not be the contract or purchase-price with interest.

The principle of the common law must be applied, and which I hold is laid down correctly in Old Colony Railroad Co. vs. Evans and Lewis vs. Lee, viz : In an action at law by the vender, to recover damages for the breach of a contract for the sale of land, the measure of damages is not the full contract price, but the difference between that price and the price for which the land could have been sold at the time of the breach.

A new. trial may be ordered upon a particular question, without reopening the whole case. Thwaites vs. Sainsbury, 7, Bing., 437. When the damages are excessive a new trial may be granted, to determine the damages, without opening the whole case. Boyde vs. Brown, 17 Pick, 453; Robbins vs. Townsend, Id., 345; Hamilton vs. Sale, 6, S. and M., 634.

*208The Court may allow a remittitur of fche excess of damages found, and overrule a motion for a new trial; but in this case there was no evidence to establish what that excess should be.

A new trial is granted, but it must be confined to the single point of determing the damages without opening the whole case.

And, inasmuch as the defendant gave no evidence at the trial tending to show the value'of the land, at the time of the breach, nor offeered any objection to the measure of damages, as claimed by the plaintiffs, they must pay the costs of the. former' trial as well as the costs of this motion.