
    James R. Johnston, Guardian of the Estate of Ephraim Vaughn, Charles Vaughn, et al., vs. The Atlas Mining Company.
    In an action at law by the vender, to recover damages for the breach of a contract for the eale 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 re-opening the whole case.
    When the defendant gave no evidence at the trial tending to show the value of the land at the time of the breach, nor offered any objection to the measure of damages as claimed by the plaintiffs, the granting of a new trial will be conditioned upon paying the coBts of the former trial, together with the costs of the motion.
    
      Keweenaw Circuit,
    
      July term, 1870.
    Suit was brought to recover the purchase or contract price of a certain tract of land, supposed to be valuable for mining purposes, in Keweenaw County. Trial, by a jury, was had at the March term, 1870, and a verdict rendered in favor of the plaintiff, for the full contract price, $20,500.00, with interest, and amounting to $27.675.00.
    This verdict the defendant afterwards moved to set aside, for various reasons, and among others as being excessive — the jury having disregarded the law laid down by the Court in certain charges for the defendant — which were in substance that there could he no verdict for the purchase price, unless the title to the premises had passed to the defendant, or in other words, that the plaintiff could not recover the purchase price of the land and keep the land too.
    
      Hubbell & Ghadbourne. for the motion
    cited Sedg. on. Dam., 3d Ed. marginal, p. 190; Old Colony Railroad Co. vs. Evans, 6. Gray; Lewis vs. Lee. 15 Ind. 499.
    
      Dan. M. Ball, contra,
    
    
      cited upon this point Sedg. on Dam., p. p. 296, 7, 8, and 9; 17 Barb., 264 — and insisted that the damages found by the jury for the purchase price, with interest, were correct. Defendant purchased thé land, plaintiffs were ready to deliver a deed at- any time. The money then should have been paid into the Probate Court or to the plaintiff on delivery of the deed.
   By the Court,

O’Grady, J.

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.

The 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.  