vested them with no title or seisin, actual or constructive, the whole title thereto having passed out of the Commonwealth by the prior grant of the same land to the said David Morton; and there is no evidence proving any actual entry of the defendants in error, claiming under and by virtue of their junior grant. The plaintiff in error had entered into possession of the tenement in question prior to the date of the patent of the defendants in error, and held the same at the date thereof; their patent bearing even date with their complaint before the justice. His entry may have been unlawful as regarded Morton or Willard claiming under him, but could not have been so as to the defendants, claiming under a patent bearing date after such entry, and which of itself, in the absence of all proof of actual possession thereunder, conferred no title whatever, as the land had been previously granted to another.

It is therefore considered that the judgment of the Circuit court, affirming the judgment of the County court, is erroneous; and the same is reversed, with costs to the plaintiff in error. And this court proceeding to render such judgment as the Circuit court should have done, it is further considered that the judgment of the County court is erroneous; and the same is reversed, with costs to the plaintiff in error; and the verdict is set aside, and the cause is remanded to the County court for a new trial, upon which the County court will be instructed to govern itself by the principles above declared and adjudged.

1851.

July

Term.

Cales
V.

Miller
& al.

In an action of covenant for the failure to deliver to the plaintiff possession of a mill which he had rented of the defendant, the plaintiff not having sustained any special damage, he is entitled to recover only the difference between the rent contracted to be paid and a fair rent for the property at the time when it should have been delivered. A conjectural estimate of the profits which may have been made is no legitimate basis upon which to fix the damages.

This was an action of covenant, brought in August 1846, in the Circuit court of Frederick county, by Robert S. Walker against Joshua Newbrough. The declaration set out a covenant by which Newbrough agreed to rent to Walker his mill, in the county of Frederick, for two years from the first of July 1846, for the rent of 300 dollars a year, payable every three months. And the plaintiff averred that the defendant had broken his covenant in this, that although the plaintiff was ready and willing and offered to comply with the same on his part, and had requested the defendant to permit him to take possession as tenant as aforesaid of the said Newbrough's mill in the said covenant mentioned, viz: on the first day of July, at the county aforesaid, the defendant positively refused; and forbid said plaintiff from so taking possession. And that said defendant, after the making of said agreement, and before giving possession of the premises, or any part thereof, to the plaintiff, viz: on the day of July 1846, rented, demised and leased the said premises to a certain Benjamin Ford, and put said Ford in possession of the same;

whereby the plaintiff was prevented from entering upon and enjoying the said leased premises. Wherefore the plaintiff avers he sustained damage to the amount of 500 dollars.

The defendant appeared and demurred to the declaration; but the demurrer was overruled. He then filed two pleas, one a general, and the other a special plea of non est factum; on which the plaintiff took issue. Upon the trial the jury found a verdict for the plaintiff for 250 dollars damages; whereupon the defendant moved the court for a new trial, on the ground, first, that the verdict was contrary to the evidence; and second, that the damages were excessive. But the court overruled the motion, and rendered a judgment upon the verdict; and the defendant excepted. The material facts of the case are as follows:

The plaintiff was a young man with a family dependent on his labour. He had been employed previous to the first of July 1846, by a Mr. Hollingsworth, as his head miller; and his time with him expired on the 13th of July. The covenant was executed some days before the 1st of July. Whilst the scrivener was preparing it the plaintiff proposed to give security for the payment of the rent, but the defendant declined it. After it was signed by the parties the plaintiff again proposed to give security for the payment of the rent, to which the defendant then assented, and a clause was added to the covenant to be signed by the sureties, by which they bound themselves for the true performance of the contract by Walker; and he took the agreement to have it signed by the sureties; and when so signed it was to be left with the person who had prepared it, for safe keeping; and it was signed and delivered accordingly before the 1st of July.

It appears that the plaintiff went to take possession of the mill on the 1st of July; that he took with him VOL. VIII.-2

1851.

July Term.

New

brough

V.

Walker.

the agreement signed by the sureties, and also a copy of it which was not signed, and shewed them to the defendant, who said that the agreement was correct, and requested the plaintiff to get the copy signed by the sureties, or to leave the original with a Mr. Bowles.

It appears that on the second and third of July the plaintiff expressed himself doubtingly about taking the mill. On the 4th Ford applied to the defendant to rent it; but defendant declined to rent it to him, and sent a messenger to the plaintiff, informing him that Ford wanted to rent the mill, and that he must come and take possession of it. To this message the plaintiff replied that he would come over that day, and attend to it; but he failed to go. On the 6th of July Ford was again at the house of the defendant to rent. the mill, when the defendant again sent a messenger to inform the plaintiff that there was a person there who wished to rent the mill, and that the plaintiff must come over and fix the papers and take possession of the mill, or he would rent it to Ford. The plaintiff not coming, it was on that evening rented to Ford for 275 dollars a year, on the same terms in other respects as it had been rented to the plaintiff. Some eight or ten days. afterwards, Ford, hearing that the plaintiff was dissatisfied at not getting the mill, went to him and told him, that if he wanted it he could still have it on the same terms on which Ford had gotten it; but the plaintiff declined to take it.

It appeared further, that the plaintiff was continued in the service of his previous employer, upon the same terms as before; and that 300 dollars was a fair rent for the property, though one witness stated that he had of fered the plaintiff 100 dollars for his lease, and another witness thought the plaintiff might have cleared three or four hundred dollars during the first year.

The defendant applied to this court for a supersedeas to the judgment, which was awarded.

Cooke, for the appellant.

There was no counsel for the appellee.

MONCURE, J. delivered the opinion of the court.

The court is of opinion that the Circuit court did not err in overruling the demurrer to the declaration; but did err in overruling the motion for a new trial. On the facts proved and certified in the cause, the jury was warranted in finding a verdict for the plaintiff in the court below; but the damages awarded were excessive. The defendant in the court below seems to have acted in good faith, and his breach of contract for which the suit was brought seems to have been the result of misunderstanding on his part. He derived no benefit from such breach, but, on the contrary, rented out the property for twenty-five dollars less than the plaintiff was to have given him. It was not averred in the declaration or proved on the trial that the plaintiff sustained any special damage by reason of the defendant's breach of contract. The plaintiff did not lose his situation, but continued in the same business in which he was engaged when he entered into the contract. The tenant to whom the property was rented offered, a few days after the renting and before he had received or purchased any wheat, to let the plaintiff have it on the same terms on which said tenant had rented it; but the plaintiff declined to accept the offer. Under these circumstances the plaintiff was entitled only to general damages, and the measure of such damages is the difference between the rent contracted to be paid and a fair rent for the property at the time when it should have been delivered to him. It was proved that 300 dollars, the rent stipulated in the lease to the plaintiff, was a fair rent for the property. On the other hand, it was proved by a witness that he offered the plaintiff one hundred dollars for his lease, which he refused to take. If upon this evidence the jury had found a verdict for