
    Haggin’s Administrator vs. Price.
    Assumpsit.
    [Mr. Richmond and Mr. Bacon for plaintiff; Mr. Owsley for defendant.]
    From the Circuit Court for Franklin Counts.
    
      April 23.
    In assumpsit, as in covenant, if the pltf. sues upon an agreement containing a stip ulation on Iris part, which constituted a condition precedent, he may sustain the action by averring and proving that he was prevented from performing it, by the deft.: but if the pltf s. stipulation was not such as could have been perfor med at once, but required continu ous action on his part, and his non performance does not entitle the defendant to an action — the re covery must be restricted to the actual damage ;it cannot be for the sum that would havebeen due for fullperformanee. As where pitf. agreed to board deft, a year for $500, and the quit in three months, without cause, pltf, can only re
      coybi pro mtaioi tinned to board coensati contract the rest of the year..
   Chief Justice Robertson

delivered the opinion of the Court.

Some time in February, 1831, Hannah Price, who then kept a boarding house in Frankfort, agreed with James Haggin, to take into her house and entertain as boarders, himself, wife and two daughters, for one year, at the price of five hundred dollars.

Pursuant to that agreement, Haggin and his said family commenced boarding with Mrs. Price on the 19th of March, 1831, and continued as boarders with her until some time in the month of June succeeding, when, for some cause undisclosed to her, they left her house and never returned.

Haggin having paid to Mrs. Price about sixty dollars, and afterwards died intestate, in August, 1836, she brought an action of assumpsit (in 1836,) against his administrator, for the price stipulated for the board for one year, or for such other sum as she might appear to be entitled to recover.

On the trial, upon the general issue, and an issue, also, on a plea of the statute of limitations, the Circuit-Court, on proof of the foregoing facts, instructed the jury, that the legal criterion of damages was the entire sum agreed to be paid for one year, deducting oniy the amount which had been paid by Haggin.

And thereupon, vérdict and judgment were rendered against the administrator for four hundred and forty dollars in damages; to reverse.which judgment this writ of error is prosecuted.

It seems to us that the instruction as to the criterion c or assessment, was erroneous.

We perceive no essential distinction between the character of this case and that of Caldwell vs. Reed, Littell’s Sel. Ca.—Chamberlin et al. vs. McCallister et al. 6 Dana, and Jewell vs. Blandford, 7 Dana. These cases recognize and establish the doctrine that, in an action of assumpsit or covenant, though the averment and proof of the fact that the plaintiff had been prevented by the defendant from the performance of a precedent condition, may be equivalent to full performance of the condition, so far as to authorize the suit for the defendant’s nonperformance, nevertheless, the plaintiff’s recovery should be restricted to the amount of actual damage whenever the unperformed condition precedent could not have been performed at once by a single act, which the plaintiff had offered to perform, and when too the defendant could have no cause of action against the plaintiff for his. nonperformance, or for the thing offered to be given or done.

These principles seem to apply, with full force, to the facts of this case.

Here it is impossible to know that, had not Haggin and family left her house, Mrs. Price would have performed her part of the contract in such a manner as would have entitled her to the whole sum of five hundred dollars; and if she should recover that sum, Haggin’s representative would certainly have no cause of action against her, either for damages or for restitution of any part of the sum so recovered by her.

If she be now entitled to recover the entire contract price for one year, she would, as certainly, have had an equal right to recover the same sum had Ilaggin and family boarded with her but one day, or, refusing altogether to comply with the contract, had never commenced boarding with her; for, in each case, she might have averred and proved that she was ready and willing to have commenced the performance of her stipulations,, but was prevented by him from any performance on her part. And it must be self-evident that, in the case last supposed, she would not have been entitled to recover as. much for the total failure of Hoggin and family to board with her, as she would have had a right to claim, under her contract, for actually boarding them a full year.

We are satisfied that, according to the only facts now exhibited, Mrs. Price is not entitled, by her contract or by law, to recover more than the value of the boarding from March to June — and any special damage she sustained by being disappointed by Haggin’s breach of the contract to board with her one year.

Wherefore, it is considered that the judgment of the Circuit Court be reversed, and the cause remanded for a new trial.  