of damages, where there is a finding by the jury that no contract of the kind existed. But where certain expenses are claimed as a part of the damages consequent upon the breach of the lessor's covenant to make repairs which it was their duty to make, evidence is admissible of offers by them to perform certain acts which would have rendered the lessee's claimed expenses unnecessary.5 53 Gulliver v. Fowler, 64 Conn. 556; 30 Atl. 852. 54 Hinckley v. Beckwith, 17 Wis. 413. 1965 CHAPTER LXIV. MORTGAGOR AND MORTGAGEE. 1894. Refusal to make loan as agreed. 1895. Damages recoverable by 1896. Failure to discharge. mortgagor or stranger. 1898. Damages for seizure or sale of 1904. Breach of agreement to assign a mortgage. 1905. Injury to mortgaged property. 1906. Value of use for detention. 1907. Breach of agreement inducing surrender of mortgage. 1908. Breach of covenant to assume and pay mortgage. mortgaged property by 1909. Foreclosure of void mortgage -Injury to business-Evidence. mortgagee. 1899. Breach of agreement to sell enough of mortgaged property to pay debt and return balance. 1900. Agreement by mortgagee to secure patronage, etc. 1901. Nominal damages Agree ment to procure insurance. 1902. Deterioration of property in mortgagee's hands. 1903. In actions between mortgagees. 1910. Damages against purchaser of mortgaged chattels. 1911. Placing satisfaction on record 1913. Set-off, counterclaim, etc.- § 1894. Refusal to make loan as agreed. In case of a refusal by the grantee in a deed, which was in equity a mortgage, to make such advances as he agreed to make and of a retention by him of the control of the property, it has been decided that there can only be a recovery, where no special injury or loss is shown, of damages for the refusal to make a direct loan after security therefor has been taken.' It has also 1 Turpie v. Lowe, 114 Ind. 37; 15 | have suffered any special injury or N. E. 834; 13 West. 413. In this loss by reason of the failure of Lowe case it was said: "In the case before to make the advancements as agreed. us it is not shown that appellants The case is totally unlike a case been determined that for failure of the mortgagee to advance the full amount as agreed, there can be no recovery because of the loss of property resulting from the inability of the mortgagor to pay his obligations on account of the failure of the mortgagee to advance such amount. Again, where no other damage results than that the mortgagor is obliged to pay a higher rate of interest, the recovery will be limited to such damages. But damages will not be limited, in an action for failure to make future advances, to legal interest where they were to have been made for use by the mortgagor in his business and the mortgagee had contracted to take a certain amount of the output at a specified price and in consequence of the failure the mortgagor could not perform the contract.1 § 1895. Damages recoverable by mortgagee for seizure under distress for rent due by mortgagor.-Where mortgaged good are seized under distress for rent due by the mortgagor there may be a recovery by the chattel mortgagee of the amount of the mortgage lien, which has not been discharged, not in excess of the value of the goods so seized.5 § 1896. Failure to discharge.-For the failure to discharge a mortgage there may be a recovery of such damages as are the natural and proximate result thereof, and the recovery is limited to such damages. And where the mortgagee of chattels refused to release the same on payment of such an amount as entitled the mortgagor to a release, there 3 McGee v. Wineholt, 23 Wash. 748; 63 Pac. 571. where in consideration of the property sold and conveyed absolutely, the purchaser agrees to pay debts owed by the vendor. He simply promised to make advancements for the benefit of appellants and has refused to make them. In no event can appellants recover more than the special damages which they have suffered by reason of his refusal and they have shown no such special damages," per Zollars, J. See also Stanley v. Nye, 51 Mich. 232; 16 N. W. 387. 2 Savings Bank v. Asbury, 117 Cal. 96; 48 Pac. 1081. Graham v. McCoy, 17 Wash. 63; 48 Pac. 780, modified on rehearing 17 Wash. 74; 49 Pac. 235. "Mantonya v. Martin Emerich Outfitting Co., 172 Ill. 92; 49 N. E. 721; 16 Nat. Corp. Rep. 5; 30 Chic. Leg. News, 219, aff'g 69 Ill. App. 62. Chinn v. Wagoner, 26 Mo. App. 678; William Deering Co. v. Miller, 33 Neb. 654; 50 N. W. 1056; Shields v. Klopf, 70 Wis. 69; 35 N. W. 284. 'William Deering Co. v. Miller, 33 Neb. 654; 50 N. W. 1056. may be a recovery of the value of such chattels at the time of tender. So where the mortgagee did not release real property from a mortgage as he agreed to do but purchased the same at foreclosure sale and subsequently sold part of the property, it was decided that there might be a recovery of the amount for which such part was sold and for at least the lowest amount which the balance was shown by the evidence to be worth per acre. Exemplary damages, however are not recoverable unless actual damage is shown to have been sustained.10 Again, it has been decided in Wisconsin that the exemplary damages awarded by statute in that state for failure to discharge a mortgage within a certain time are given without regard to the good faith of the holder of the mortgage." And it has been held in Nebraska that the statute of that state imposing a penalty in such a case is merely cumulative and does not prevent the recovery of actual damages. Again, in Idaho, it is held that in an action to obtain a judgment that a mortgage has been satisfied and to recover the statutory penalty for failure to satisfy the same, the defendant must, where he claims that it has not been fully paid, interpose such claim as a counterclaim and cannot maintain a subsequent action therefor while the former suit is pending.13 § 1897. Seizure, sale or conversion by mortgagor or stranger. Where the mortgaged property is converted by the mortgagor or a stranger, the measure of damages will be the amount of the mortgage debt and interest provided it is not in excess of the value of the property." § 1898. Damages for seizure or sale of mortgaged property by mortgagee.-Where mortgaged property is disposed Barbee v. Scoggins, 121 N. C. 135; 14 Perrego G. M. & C. Co. v. Grimes, 2 Colo. 651; Mantonya v. 452. 28 S. E. 259. Pettit v. Carpenter, 86 Mo. App. Martin Emerich Outfitting Co., 69 Ill. App. 62; Parish v. Wheeler, 22 N. Y. 496; Warner v. Vallily, 13 R. I. 483; Smith v. Anderson, 70 Vt. 424; 41 Atl. 441; Smith v. Phillips, 47 10 Mickie v. McGehee, 27 Tex. 134. " Shields v. Klopf, 70 Wis. 69; 35 N. W. 284. 12 William Deering Co. v. Miller, 33 Wis. 202. See Bates v. Murphy, 2 Neb. 654; 50 N. W. 1056. Stew. & P. (Ala.) 160. See also 13 Stevens v. Home Sav. & L. Assn. sec. 1135 herein. (Idaho), 51 Pac. 779. 15 of by the mortgagee in possession in a manner inconsistent with the rights of the mortgagor, the former will be liable to the latter in damages. And there may be a recovery in the case of mortgaged property so converted of the reasonable value of the property, less the mortgage debt secured thereby.16 Nor can the damages for the conversion of a piano by a private sale of the same instead of a public sale, as required by the mortgage, be reduced to a merely nominal sum by tendering the piano to the mortgagor on condition of the amount due under the mortgage being paid." And where chattels are alleged to have been sold by the mortgagee for an inadequate price the jury may, in ascertaining their value, consider their condition at the time of sale and the circumstances under which they were sold. Again, the value of chattels converted by a mortgagee for which there may be a recovery is declared to be the value at the time they were taken.19 And interest on the value of the property may be allowed by way of damages. But in the case of property being forcibly taken by the mortgagee, who enters the house of the mortgagor after condition broken, it has been decided that there can be no recovery for the value of the property, but only of exemplary damages for the trespass," which may generally be allowed where the act of the mortgagee was wanton and malicious." Again, damages for the detention of property are not recoverable beyond the date of a judgment by which it is subjected to sale for the payment of the mortgage. Nor are damages recoverable in an action for wrongful seizure which are not the proximate but the secondary result of the seizure." And 15 Burton v. Randall, 4 Kan. App. 20 Earle v. Gorham Mfg. Co., 2 App. 593; 46 Pac. 326. Div. (N. Y.) 460; 37 N. Y. Supp. | 1037. 20 79. 23 16 Burton v. Randall, 4 Kan. App. 593; 46 Pac. 326. Examine Vander- 21 Jones v. Martini Furnishing Co., hoven v. Romaine, 56 N. J. Eq. 1; 39 77 Mo. App. 474; 2 Mo. A. Repr. Atl. 129; Finley v. Cudd, 42 S. C. 121; 20 S. E. 32. But see Gravel v. Clough, 81 Iowa, 272; 46 N. W. 1092. 17 Colby v. Kimbal Co., 99 Iowa, 321; 68 N. W. 786. 18 22 Kilpatrick v. Holey, 66 Fed. 133; 13 C. C. A. 480. Examine Chambers v. Upton, 34 Fed. 473. 23 Garr, S. & Co. v. Lyon, 99 Ky. Raymond v. Miller, 34 Neb. 576; 672; 37 S. W. 73; 18 Ky. L. Rep. |