Gilchrist, J.
The defendant alleges that the bond on which this suit is brought has been cancelled by the agreement of the parties. If this be so, the action must fail, and an enquiry into the other points raised by the case will be unnecessary.
It appears from the case, that after Young had conveyed the farm to the plaintiffs, he granted to the defendant the right to build the dam. It is not shown that the grant was made upon any other consideration than the execution of the bond now in suit; and Young, therefore, could have had no other interest in requiring the bond, than to protect either the plaintiffs’ interest in the farm, or the title into whosesoever hands it might come. It is but a reasonable presumption that a sensible man would look, with sufficient care before him, to see beyond the plaintiffs’ interest, and regard the title, whoever might hold it. He might, himself, again own the property; in which event,' if the interest of the plaintiffs alone had been cared for, he would be subjected to all the damages against which he desired to secure them, and would lose the benefit of a security no more valuable to them than to himself. He would have permitted the defendant to erect a dam which might be the cause of serious injury to his property, not only without any corresponding benefit, but without any provision for the damages he might sustain. We have no right to suppose that he was so destitute of reasonable vigilance as to regard only the interest of these individual plaintiffs.
If these views be correct, they will throw some light upon the transaction which, in the year 1834, or about two years after the date of the deed, took place between Young and the plaintiffs, in relation to the instruments in question. [161]*161Young says that the deed to the plaintiffs not having been recorded, was given up to him by the grantees, and he gave up to them the notes they had given for the land ; “ and the whole trade was cancelled by agreement of the parties.” We can easily understand that they might have had sufficient reasons for desiring that their notes should be cancelled, and that Young might have assented thereto; but what object could either the plaintiffs or Young have had in wishing to cancel the bond ? To the plaintiffs it would he indifferent what became of it. Their interest havin g ceased with the rescission of the deed, the fate of the bond, which was intended only to protect an interest in the land, would be immaterial to them. They would not ask that it should be cancelled. And if Young entertained those views of bis interest which we have supposed, he would be very far from desiring to cancel it.
There being, then, if our reasoning be sound, no assignable object which either Y onng or the plaintiffs could have had in view in desiring that the bond should be cancelled, we come to the enquiry, what was actually done by the parties ? Young says that the deed and notes were given up, “ and the whole trade was cancelled by agreement of the parties.” Now this sentence must be construed with reference to the subject matter which would interest the parties ; that is, the deed and the notes. By the word “ trade,” distorting it from its proper meaning, that of traffic in merchandize, the wituess meant the bargain which he had made with the plaintiffs. When he said that the trade was cancelled, he meant only that the deed and the notes were surrendered by each to the other, with the intent thereby to revest the title to the laud in the witness. It is only by considering what the parties desired to accomplish, that any intelligent exposition can be given of the sentence; for the word “ trade,” when used to express ideas which it does not properly convey, may, without considering the object of the parties, comprehend the bond as well as the other instruments. The [162]*162subsequent conduct, also, of Young, shows that he did not understand the bond was to be cancelled, or that it was to be given to him, in order to become of no effect; or to be obliterated or defaced in any way ; in which figurative sense the word £; cancel” is now often used. 2 Bl. Com., ch. 20. He delivered the bond to the person to whom he subsequently conveyed the land, with the intent, as he expressly says, “ that he might have the benefit of it.”
For the foregoing reasons we think that the parties never intended to cancel the bond. And even if such had been their intention, it'has been settled in this court that a mere agreement to cancel a deed will be of no effect without an actual cancelling. Farrar vs. Farrar, 4 N. H. Rep. 191; Morse vs. Child, 6 N. H. Rep. 521. And the authorities referred to by the court, in Farrar vs. Farrar, seem to hold that although the instrument be actually surrendered,for the purpose of being cancelled, still, if it be not cancelled, and the other party get it again, it will still remain a valid deed. Shep. Touch. 70; Cross vs. Powell, Cro. Eliz. 483.-
This point must be-adjudged in favor of the plaintiff.
We come now to the consideration of the questions raised by the demurrer to the replication. And here the first enquiry is, whether the defendant’s plea be sufficient, in compliance with the rule that upon demurrer judgment must be against him who has committed the first fault in pleading.
The condition of the bond is, that the defendant, 1, shall pay all damages that the plaintiffs may sustain in consequence of the dam being built; 2, and shall repair all damages done by the water to the farm, that may be caused in consequence of the dam being erected; 3, and shall pay to the plaintiffs and their assigns all damages that the farm may hereafter sustain in consequence of the dam being erected.
The first and third of these clauses differ from each other very slightly, even in language, and seem to express substantially the same idea. If any injury should be caused by the dam, the plaintiffs were to receive a compensation therefor [163]*163m money. And it is not easy to see, that the sense of the words would have been changed, if they had provided, that the plaintiffs should be indemnified from the injury caused by the dam. But the second clause is different. It provides that the defendant shall repair all damages caused by the dam. Although it is connected with the preceding clause by the word “ and,” it is not, therefore, to be considered cumulative, and as imposing on the defendant the duty, not only of paying, but of repairing the damages. It is one of those cases where “and” must be construed to mean “ or” ; for if the farm should be injured by the dam, and the defendant should repair the damages, it certainly could not be contended that, after having done this, he should pay money as compensation for them. Considering the first and third clauses to have the same meaning, our construction of the whole condition is that it binds the defendant either to pay or to repair the damages, and that the second clause is in the alternative.
The plea of non damnificaius is in the nature of a plea of performance. In the general form it applies to cases where the condition is general, to indemnify or discharge the plaintiffs from any damage by reason of a certain thing, as in the ordinary case of a bastardy bond. 1 Chitty's Pl. 569 ; 1 Sound. 117, n. 1 ; Steph. on Pl. 364.
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Gilchrist, J.
The defendant alleges that the bond on which this suit is brought has been cancelled by the agreement of the parties. If this be so, the action must fail, and an enquiry into the other points raised by the case will be unnecessary.
It appears from the case, that after Young had conveyed the farm to the plaintiffs, he granted to the defendant the right to build the dam. It is not shown that the grant was made upon any other consideration than the execution of the bond now in suit; and Young, therefore, could have had no other interest in requiring the bond, than to protect either the plaintiffs’ interest in the farm, or the title into whosesoever hands it might come. It is but a reasonable presumption that a sensible man would look, with sufficient care before him, to see beyond the plaintiffs’ interest, and regard the title, whoever might hold it. He might, himself, again own the property; in which event,' if the interest of the plaintiffs alone had been cared for, he would be subjected to all the damages against which he desired to secure them, and would lose the benefit of a security no more valuable to them than to himself. He would have permitted the defendant to erect a dam which might be the cause of serious injury to his property, not only without any corresponding benefit, but without any provision for the damages he might sustain. We have no right to suppose that he was so destitute of reasonable vigilance as to regard only the interest of these individual plaintiffs.
If these views be correct, they will throw some light upon the transaction which, in the year 1834, or about two years after the date of the deed, took place between Young and the plaintiffs, in relation to the instruments in question. [161]*161Young says that the deed to the plaintiffs not having been recorded, was given up to him by the grantees, and he gave up to them the notes they had given for the land ; “ and the whole trade was cancelled by agreement of the parties.” We can easily understand that they might have had sufficient reasons for desiring that their notes should be cancelled, and that Young might have assented thereto; but what object could either the plaintiffs or Young have had in wishing to cancel the bond ? To the plaintiffs it would he indifferent what became of it. Their interest havin g ceased with the rescission of the deed, the fate of the bond, which was intended only to protect an interest in the land, would be immaterial to them. They would not ask that it should be cancelled. And if Young entertained those views of bis interest which we have supposed, he would be very far from desiring to cancel it.
There being, then, if our reasoning be sound, no assignable object which either Y onng or the plaintiffs could have had in view in desiring that the bond should be cancelled, we come to the enquiry, what was actually done by the parties ? Young says that the deed and notes were given up, “ and the whole trade was cancelled by agreement of the parties.” Now this sentence must be construed with reference to the subject matter which would interest the parties ; that is, the deed and the notes. By the word “ trade,” distorting it from its proper meaning, that of traffic in merchandize, the wituess meant the bargain which he had made with the plaintiffs. When he said that the trade was cancelled, he meant only that the deed and the notes were surrendered by each to the other, with the intent thereby to revest the title to the laud in the witness. It is only by considering what the parties desired to accomplish, that any intelligent exposition can be given of the sentence; for the word “ trade,” when used to express ideas which it does not properly convey, may, without considering the object of the parties, comprehend the bond as well as the other instruments. The [162]*162subsequent conduct, also, of Young, shows that he did not understand the bond was to be cancelled, or that it was to be given to him, in order to become of no effect; or to be obliterated or defaced in any way ; in which figurative sense the word £; cancel” is now often used. 2 Bl. Com., ch. 20. He delivered the bond to the person to whom he subsequently conveyed the land, with the intent, as he expressly says, “ that he might have the benefit of it.”
For the foregoing reasons we think that the parties never intended to cancel the bond. And even if such had been their intention, it'has been settled in this court that a mere agreement to cancel a deed will be of no effect without an actual cancelling. Farrar vs. Farrar, 4 N. H. Rep. 191; Morse vs. Child, 6 N. H. Rep. 521. And the authorities referred to by the court, in Farrar vs. Farrar, seem to hold that although the instrument be actually surrendered,for the purpose of being cancelled, still, if it be not cancelled, and the other party get it again, it will still remain a valid deed. Shep. Touch. 70; Cross vs. Powell, Cro. Eliz. 483.-
This point must be-adjudged in favor of the plaintiff.
We come now to the consideration of the questions raised by the demurrer to the replication. And here the first enquiry is, whether the defendant’s plea be sufficient, in compliance with the rule that upon demurrer judgment must be against him who has committed the first fault in pleading.
The condition of the bond is, that the defendant, 1, shall pay all damages that the plaintiffs may sustain in consequence of the dam being built; 2, and shall repair all damages done by the water to the farm, that may be caused in consequence of the dam being erected; 3, and shall pay to the plaintiffs and their assigns all damages that the farm may hereafter sustain in consequence of the dam being erected.
The first and third of these clauses differ from each other very slightly, even in language, and seem to express substantially the same idea. If any injury should be caused by the dam, the plaintiffs were to receive a compensation therefor [163]*163m money. And it is not easy to see, that the sense of the words would have been changed, if they had provided, that the plaintiffs should be indemnified from the injury caused by the dam. But the second clause is different. It provides that the defendant shall repair all damages caused by the dam. Although it is connected with the preceding clause by the word “ and,” it is not, therefore, to be considered cumulative, and as imposing on the defendant the duty, not only of paying, but of repairing the damages. It is one of those cases where “and” must be construed to mean “ or” ; for if the farm should be injured by the dam, and the defendant should repair the damages, it certainly could not be contended that, after having done this, he should pay money as compensation for them. Considering the first and third clauses to have the same meaning, our construction of the whole condition is that it binds the defendant either to pay or to repair the damages, and that the second clause is in the alternative.
The plea of non damnificaius is in the nature of a plea of performance. In the general form it applies to cases where the condition is general, to indemnify or discharge the plaintiffs from any damage by reason of a certain thing, as in the ordinary case of a bastardy bond. 1 Chitty's Pl. 569 ; 1 Sound. 117, n. 1 ; Steph. on Pl. 364. It may be used where the defendant means to allege that the plaintiff has been kept harmless, and indemnified according to the tenor of the condition : and may then be pleaded in general terms, without showing the particular manner of thp indemnification. 2 Sound. 84. If the condition do not use the words “ indemnify,” or “ save harmless,” or some equivalent term, but stipulate for the performance of some specific act, intended to be by way of indemnity, such as the payment of a sum of money by the defendant to a third person, in exoneration of the plaintiff’s liability to pay the same sum, this plea will be improper, and the defendant should plead performance specially, as “ that he paid the said sum.” 1 Bos. & P. 638. Holmes [164]*164vs. Rhodes. If the condition be to “ discharge” or “ acquit” the plaintiff from a particular thing, this plea will not apply, but the defendant must plead performance specially, “ that he discharged and acquitted,” and must also show the manner of the acquittal. 1 Saund. 117, n. 1, Cutler vs. Southern; Strange 681, White vs. Cleaver; 2 Ld. Raym. 1449. But if the condition be to “ discharge and acquit the plaintiff from any damage” by reason of a certain thing, non darnnificalus may then be ¿pleaded, because that is, in truth, the same thing with a condition “ to indemnify and save harmless.” 1 Saund. 117, to. 1; 1 B. & P. 648, n. (b.) It is upon this latter ground that we think the first and third clauses in this condition mean in substance nothing more than a stipulation to indemnify the plaintiffs from any injury caused by the dam.
But these clauses are in the alternative ; the defendant was to do one thing or the other. And where the matters are in the disjunctive or alternative form, a general allegation of performance is insufficient, and he should show which of the alternative acts was performed. Steph. on Pl. 369 ; Com. Dig., Pleader, (E, 25 ;) 2 Saund. 410; Cro. Eliz. 433. The reason given for this is, that the general plea of performance, in the case of negative matters, would be indirect or argumentative, and where the acts are alternative would be equivocal. We are, therefore, of opinion that the plea is no answer to the action, and upon this ground, without further enquiry, we might render judgment for the plaintiffs.
As, however, upon a different state of the pleadings, it might beeome necessary to give a construction to the condition, for the purpose of bringing this controversy to a close, we have made an examination of that question in the present case.
The ground of the demurrer to the replication is that it does not show that the plaintiffs had any interest in the land at the time the damage was done.
Before ascertaining the meaning of the condition, it may be well to enquire what result would have followed if the ye[165]*165plication had contained the words, “and thereby the plaintiffs have been injured,” so that it would have been free from the defendant’s objection ; or, if it had contained some more specific averment that the plain tiffs owned the land at the time of the injury.
If the defendant had traversed this allegation, the plaintiffs might, in the first place, have demurred to it. And upon the demurrer, the question would have been, whether, admitting that the plaintiffs had sustained no injury, the action could be maintained. This would instantly have brought up the general question of the proper construction of the bond. Nothing would have been settled by it, and it would clearly have been an immaterial traverse. It would have led to no decisive result. It would not have comprehended the whole matter in controversy, which would be, whether the plaintiffs might not still have maintained the action; and that could be determined only upon an examination of the condition.
In the second place, the plaintiffs might have taken issue upon the traverse, and might have tried the question of fact. And the result would have been immaterial. What is the substance, the gravamen, of the replication 1 Is it that one of the events had occurred, upon the happening of which the defendant had agreed to make compensation; or, is it merely that the plaintiffs have suffered injury ? If the river were thrown back, pent up, and then turned and thrown upon the farm, and the dwelling-house were undermined, and the land injured, does it not follow that the allegation, “ and thereby the plaintiffs have suffered damage,” is an inference from the substance of the replication, and not that substance itself ? Or, can we say that although the farm might have been damaged, the interest of the owner of the farm was not injured ? An injury to property is an injury to the owner of it. The traverse would have been a traverse of an inference from the replication, and not of the matters alleged in it; a denial, not that the farm had suffered damage, but that the owner of it had. And if the verdict had been' that the [166]*166plaintiffs had .no interest in the farm, the question of the construction of the bond would still remain to be determined, and upon that the rights of the parties must depend.
The question, then, is, what effect may legally be given to the bond ? There is no doubt, from the facts which appear in the case, that the parties intended it should accompany and protect the title to the land, whoever should hold it. After providing, in the two first clauses, for paying for, or repairing the damages, the third clause binds the defendant to pay to the plaintiffs, or their assigns, the damages caused by -the dam. There was ho reason for inserting this clause unless the interest of some other person than the plaintiffs had been considered. Moreover, as the dam might cause permanent injury to the land, and as the plaintiffs might desire at some future time to convey it, in order that an advantageous sale might be effected it would be necessary that the owner of the farm should be protected against loss.
If the bond had been assigned to a stranger to the title, and he had brought a suit upon it, he would have been entitled to judgment. The enquiry would then have been made, whether he had sustained any damages ; and, having suffered none, he would have been entitled only to nominal damages. He would have had no equitable interest to be protected. But in this case, the holder of the bond is the owner of the land, and has been injured. He has an equitable claim to compensation. His case, then, comes within the principle that the equitable interest of the assignee of a chose in action will be protected in a court of law. 2 Bl. Rep. 1137, Stuart vs. Tucker; 1 B. & P. 447, Legh vs. Legh. We causee no objection to giving him the compensation he ought to receive through the instrumentality of the plaintiffs, who will hold whatever sum they may recover as his trustees, and for his benefit. The object of all the parties is thus effected; the defendant pays only what he has stipulated to pay, and the injured party obtains compensation. We are, therefore, of opinion that there should be
Judgment for the plaintiffs.
Woods, J., having .been of counsel, did not sit.