
    ROWLAND against DOWE.
    assessi'ngda* maizes m an action for the fcon-perform-tract ought"* not to take »t?on°any 6 thing; winch would not be admissible to evidence'1* Therefore in the standing Ufthe parties & tot proper for the consideration of the jury.
    This Was an action on the case for the non-performance an agreement to sell lands. It appeared in evidence that the Defendant had agreed with the Plaintiff to inform him by letter, whether he would take the price offered for ^ ^an<^s A question,—that the Defendant had insisted tipon more but the Plaintiff positively refused it,—that the price offered was §2000, payable in instalments, at which time the Plaintiff informed the Defendant, that in . case of a purchase he* the Plaintiff, would be under the necessity of selling other lands to meet the payments Of the new purchase t .the Plaintiff therefore insisted on the Defendant giving as early notice as possible as to his de*' termination in respect to the offered price. Shortly af-terwards the Defendant wrote the letter which follows; on the receipt of which, the Plaintiff declared his accept-anee, and closing with the terms of the original contract; according to which he tendered his bonds and demanded a title to the land;. The Defendant declared he would sign no deed, which did not reserve to him a few acres out of the tract, at a particular place adjoining the town of Lumberton, which, from the evidence appeared to be the most valuable part of the land. The Plaintiff did not offer or tender any deed or draft for the Defendant to sign*
    The Court directed the Jury that the fair exposition of the letter was, an acceding to the original offer of purchase, and as to that part which related to the reservation of a few acres, the Court directed them, that the same was precatory and rested merely in the will of the Plaintiff ; and as to the want of tendering a deed ©r draft, the Court informed them, that the Plaintiff wasdicharged from a formal tender, by the declaration of the Defendant.--The Court in its direction to the Jury, declared, that jn assessing damages, they ought to respect the situation of the parties, when mere loss of bargain was the gist of the action; and that a Jury in its discretion was well autho-rised to assess damages to a greater amount, between parties whose situation and circumstances in point of fortune, placed them beyond ordinary standing, than in a case where they were of the opposite character, and had po opportunity from education or manners to know the impropriety of violating a contract. This part of the charge the Court in no wise doubting, but states it merely for the satisfaction oí the Counsel of the Defendant*
    The Jury found a verdict of 50/.
    
      Rockingham, 13th Feb. 1815.
    Dear Sir,
    Agreeably to promise I embrace this opportunity to write to you from this place. J have seriously weighed in my own breast the subject between me and you, in respect to the sale of my plantation, commonly known by the name of Walnut Shade. I do not hesitate to say, that you may proceed to make sale of your lands, when a favorable opportunity may offer. I shall soon be at Lum-berton again. As the land I am going to let you have, on the back of my plantation is of greater value than that which I retain on the Elizabeth road, I know you will not hesitate to make me some equivalent of a spot of land on some other corner, joining other land of mine, where it will be no inconvenience to you As Mr. C. Moore has made preparation for making a crop, I expect not to discommode him this season ; should he not put the whole uiider crop, the balánce will be yours. I will leave this place for Char» iotte, in four or five days. I remain with respect your old friend,
    JOHN DOWE,
    Alfred Rowland, Esq,
    McKay, for the Defendant,
    contended that as no evidence was admissible as to the character of either party, such a consideration was improper for the Jury; character can only be enquired into in a civil suit, where it is directly put in issue by the nature of the proceeding itself ; that the Plaintiff ought to have tendered a deed before he could have a right to sue, and this obligation was pot dispensed with by any act of the Defendants, that even if the Plaintiff has a cause of action, his right t» damages can only be nominal.
    
    
      
      
        Bullen, 293.
      
    
    
      
      Seyden, 163, 4.
    
    
      
      
        4 Dalus 627
    
    
      
      
         3 Term, Rep. 653-Powell on con 360, 16, Earl 4.
      
    
   §eAWei,l, J.

Upon full consideration of this case, J am well satisfied, I was mistaken in the direction I gave to the Jury, in respect to faking into consideration tfie standing of the parties, in assessing the damages.

I think the true rule is, that the Jury are not permitted to take into consideration any thing, which w opld not be -admissible to be given in evidence. The evidence is either to inform the Jury in respect to the existence of a fact put jn issue, or as to its quality and extent. Wherg the character of a party is put in issue, or the matter in controversy is vindictive or matter of feeling, the extent of th' injury done in the latter case, as well as the existence of the fact in the first case, can in some degree be esti* mated by the standing of the parties—and where the evidence is conducive to the matters or their extent, put in issue, it is admissible.

In this case the standing of the parties was not conducive to inform the Jury upon either of those points.

There must be a new trial—but upon all the other points I see no reason to alter the opinion I entertained on the triai.

Hall, J. Daniel, J* and Ruffin J. concurred.  