Foster, J.
This action is brought to recover special damages which the plaintiff says he has sustained by reason of a breach of the defendant’s promise to deliver to him possession of the premises on the first day of October.
The defendant says that if the plaintiff has any remedy he has misconceived it, and this form of action cannot be maintained.
We entertain a different opinion, and conceive that if the plaintiff*, is entitled to recover upon the merits, an action upon the case is his appropriate remedy.
It was so considered in Russell v. Fabyan, 34 N. H. 225, which was case, alleging that the defendant, having been a tenant of a certain hotel for a term which expired on a certain date, wrongfully continued to occupy the same after the lease expired, &c. See also West v. Trende, Cro. Car. 187 ; 1 Sel. N. P. 452 note 3.
Under the instructions of the court, the jury must have found the facts to be as claimed by the plaintiff, namely: That the defendant .agreed with Daniell, before the sale, that he would leave the premises on or before the first day of October, so that the purchaser might have possession on that day; that, at the auction, among other restrictions and conditions annexed to the sale, were these : That the purchaser should have possession on or before the first day of October, the defendant in the mean time paying to the purchaser the same rent as has been previously paid to Daniell, for the remainder of the > term; that the defendant, being present, stated that the purchaser should have possession by the day named, and that the sale was made upon these conditions, with the defendant’s full knowledge and consent. They must, also, have found that the plaintiff never subsequently assented to a continued possession by the defendant after October 1st; but, on the contrary, told him, at that time, that he would not have him remain longer on any condition, as he wanted to make repairs immediately.
What, then, was the relative condition, and what were the relative rights and obligations of these parties after Oct. 1st? The defendant claims that he was a tenant at will to the plaintiff; and as such tenant entitled to notice to quit, before he coukl be required to leave the premises, or be held responsible for damages on account of his continued possession; while the plaintiff basis his right of recovery upon grounds entirely independant of any question concerning the relationship of landlord and tenant, and says it is quite immaterial whether any such relationship existed between the parties. And he does not seek to recover possession nor rent, but special damages, suffered in consequence of defendant’s breach of his promise to quit the premises by a day certain.
In the view which we take of-the whole matter, it seems to us quite unnecessary to encumber the case with any consideration of the relationship of landlord and tenant, or to inquire whether such Avas or was not the relative situation of these parties after the first of October; and, therefore, Ave need not determine whether or not the defendant’s promise to vacate the premises by the first of October, [54]*54operated as a waiver of the right to require demand of possession and notice to quit.
And, for the purposes of this case, we may concede that the defendant was the tenant at will of the plaintiff; that he could not be ousted in any other manner than in accordance with the forms and rules applicable to the condition of such a tenancy, and that neither rent nor damages in the nature of rent can be recovered in this action ; and also that a promise to vacate the premises by a day certain will not operate as a waiver of the statutory requirements of demand and notice.
But it is urged by his counsel, in argument, that the defendant’s promise to deliver up the premises on or before the first of October, was a mere nudum pactum, having been made without sufficient consideration, and that, therefore, this action, resting upon such promise, must fail.
Upon this point the court instructed the jury that “ if the defendant’s promise and agreement was as claimed by the plaintiff, and was stated by the defendant at the auction, or by the auctioneer, with the defendant’s full knowledge and> assent, and was acted upon by the plaintiff, in purchasing the property, the defendant would be bound by his promise; at least, that he could not be heard to deny that it was founded upon a sufficient consideration, as against this plaintiff.”
To these instructions, so far as they relate to the defendant’s being estopped to deny that his agreement and promise were without consideration, the defendant excepted.
We are inclined to think that these instructions go to a further extent then the occasion demanded; that it would have been sufficient for the court to have stopped with instructing the jury that if the defendant made the promise as claimed by the plaintiff, and the plaintiff was induced thereby to purchase the property, and did so purchase it, the defendant would be bound by his promise ; and that there was no occasion for the court to go further than this, and to add, “ at least, that he could not be heard to deny that it was founded upon a sufficient consideration, as against this plaintiff.”
The first branch of the instructions we regard as entirely correct. It applies, and in the explicit language of the court is made applicable only to the case of the jury finding, as matter of fact, that the defendant’s promise and agreement was as claimed by the plaintiff, and was acted upon by the plaintiff in purchasing the premises.
In such case, the defendant would be bound by his promise, said the court; that is, in other words, th§re was a good and sufficient consideration for it.
It is elementary that a sufficient consideration arises to support a promise whenever the promissee, by reason thereof has been put to any expense or inconvenience, however trifling. Chitty Cont. 28.
And it has been held in a case where, in order to facilitate the making of an agreement, for which there was a sufficient consideration between the plaintiff and a third person, the defendant, who personally received no benefit from the agreement, became a party [55]*55thereto ; that, as the agreement was such as the plaintiff would not have made, unless the defendant had acceded and become a party to the contract, there was a sufficient consideration for the promise of the latter. Bailey v. Croft, 4 Taunt. 611; Mocalta v. Francis, 3 Dougl. 11.
So here, there can be no doubt, as matter ■ of law, that if the plaintiff acted upon the faith of the defendant’s promise, and so purchased the estate, or gave a larger price for it than he would otherwise have given, there was a sufficient consideration for the defendant’s promise.
When the court said, therefore, that under these circumstances the defendant would be bound by his promise, it is the same thing as saying that the promise was founded upon a sufficient consideration; and so, we cannot doubt, the jury must have understood it; and when the court went further, and said in substance, there being a good consideration proved, the defendant cannot be heard to say it was not a good consideration, the cause of the defendant is not prejudiced nor weakened thereby, nor is the charge to the jury any the less favorable to him therefor.
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Foster, J.
This action is brought to recover special damages which the plaintiff says he has sustained by reason of a breach of the defendant’s promise to deliver to him possession of the premises on the first day of October.
The defendant says that if the plaintiff has any remedy he has misconceived it, and this form of action cannot be maintained.
We entertain a different opinion, and conceive that if the plaintiff*, is entitled to recover upon the merits, an action upon the case is his appropriate remedy.
It was so considered in Russell v. Fabyan, 34 N. H. 225, which was case, alleging that the defendant, having been a tenant of a certain hotel for a term which expired on a certain date, wrongfully continued to occupy the same after the lease expired, &c. See also West v. Trende, Cro. Car. 187 ; 1 Sel. N. P. 452 note 3.
Under the instructions of the court, the jury must have found the facts to be as claimed by the plaintiff, namely: That the defendant .agreed with Daniell, before the sale, that he would leave the premises on or before the first day of October, so that the purchaser might have possession on that day; that, at the auction, among other restrictions and conditions annexed to the sale, were these : That the purchaser should have possession on or before the first day of October, the defendant in the mean time paying to the purchaser the same rent as has been previously paid to Daniell, for the remainder of the > term; that the defendant, being present, stated that the purchaser should have possession by the day named, and that the sale was made upon these conditions, with the defendant’s full knowledge and consent. They must, also, have found that the plaintiff never subsequently assented to a continued possession by the defendant after October 1st; but, on the contrary, told him, at that time, that he would not have him remain longer on any condition, as he wanted to make repairs immediately.
What, then, was the relative condition, and what were the relative rights and obligations of these parties after Oct. 1st? The defendant claims that he was a tenant at will to the plaintiff; and as such tenant entitled to notice to quit, before he coukl be required to leave the premises, or be held responsible for damages on account of his continued possession; while the plaintiff basis his right of recovery upon grounds entirely independant of any question concerning the relationship of landlord and tenant, and says it is quite immaterial whether any such relationship existed between the parties. And he does not seek to recover possession nor rent, but special damages, suffered in consequence of defendant’s breach of his promise to quit the premises by a day certain.
In the view which we take of-the whole matter, it seems to us quite unnecessary to encumber the case with any consideration of the relationship of landlord and tenant, or to inquire whether such Avas or was not the relative situation of these parties after the first of October; and, therefore, Ave need not determine whether or not the defendant’s promise to vacate the premises by the first of October, [54]*54operated as a waiver of the right to require demand of possession and notice to quit.
And, for the purposes of this case, we may concede that the defendant was the tenant at will of the plaintiff; that he could not be ousted in any other manner than in accordance with the forms and rules applicable to the condition of such a tenancy, and that neither rent nor damages in the nature of rent can be recovered in this action ; and also that a promise to vacate the premises by a day certain will not operate as a waiver of the statutory requirements of demand and notice.
But it is urged by his counsel, in argument, that the defendant’s promise to deliver up the premises on or before the first of October, was a mere nudum pactum, having been made without sufficient consideration, and that, therefore, this action, resting upon such promise, must fail.
Upon this point the court instructed the jury that “ if the defendant’s promise and agreement was as claimed by the plaintiff, and was stated by the defendant at the auction, or by the auctioneer, with the defendant’s full knowledge and> assent, and was acted upon by the plaintiff, in purchasing the property, the defendant would be bound by his promise; at least, that he could not be heard to deny that it was founded upon a sufficient consideration, as against this plaintiff.”
To these instructions, so far as they relate to the defendant’s being estopped to deny that his agreement and promise were without consideration, the defendant excepted.
We are inclined to think that these instructions go to a further extent then the occasion demanded; that it would have been sufficient for the court to have stopped with instructing the jury that if the defendant made the promise as claimed by the plaintiff, and the plaintiff was induced thereby to purchase the property, and did so purchase it, the defendant would be bound by his promise ; and that there was no occasion for the court to go further than this, and to add, “ at least, that he could not be heard to deny that it was founded upon a sufficient consideration, as against this plaintiff.”
The first branch of the instructions we regard as entirely correct. It applies, and in the explicit language of the court is made applicable only to the case of the jury finding, as matter of fact, that the defendant’s promise and agreement was as claimed by the plaintiff, and was acted upon by the plaintiff in purchasing the premises.
In such case, the defendant would be bound by his promise, said the court; that is, in other words, th§re was a good and sufficient consideration for it.
It is elementary that a sufficient consideration arises to support a promise whenever the promissee, by reason thereof has been put to any expense or inconvenience, however trifling. Chitty Cont. 28.
And it has been held in a case where, in order to facilitate the making of an agreement, for which there was a sufficient consideration between the plaintiff and a third person, the defendant, who personally received no benefit from the agreement, became a party [55]*55thereto ; that, as the agreement was such as the plaintiff would not have made, unless the defendant had acceded and become a party to the contract, there was a sufficient consideration for the promise of the latter. Bailey v. Croft, 4 Taunt. 611; Mocalta v. Francis, 3 Dougl. 11.
So here, there can be no doubt, as matter ■ of law, that if the plaintiff acted upon the faith of the defendant’s promise, and so purchased the estate, or gave a larger price for it than he would otherwise have given, there was a sufficient consideration for the defendant’s promise.
When the court said, therefore, that under these circumstances the defendant would be bound by his promise, it is the same thing as saying that the promise was founded upon a sufficient consideration; and so, we cannot doubt, the jury must have understood it; and when the court went further, and said in substance, there being a good consideration proved, the defendant cannot be heard to say it was not a good consideration, the cause of the defendant is not prejudiced nor weakened thereby, nor is the charge to the jury any the less favorable to him therefor.
The instruction is neither more nor less than this : “If you find certain facts to exist, the defendant is bound by his promise, and he cannot say that he is not.”
With regard to the legal admissibility of the plaintiff’s title deed, we can entertain no doubt. The plaintiff had the right, notwithstanding the defendant’s admissions, to put his record evidence before the jury and into their possession, in the usual way; and, under the plain instructions of the court, it was impossible for the jury to be misled by any statement concerning the reservation, contained in the deed.
Another question relates to the admissibility of Rowell’s declaration, to the effect that he should not have bid upon the property at all, but for the fact that he was to have the possession by the first day of October. Rowell was the plaintiff’s agent in the purchase, and testified concerning the terms and conditions of the sale, as stated at the auction, both by the auctioneer and by the defendant. And his own part in the transaction, his acts, his sayings, his motives and intentions were those of his principal; for whatever is done by an agent in reference to the business in which he is at the time employed, and within the scope of his authority, is said or done by the principal; and may be proved, in all respects, as if the principal were the actor ortho speaker. Am. Fur. Co. v. The United States, 2 Pet. 364; Cliquot’s Champagne, 3 Wallace 140.
The declaration alleges that the defendant promised to quit the premises and that “the plaintiff, relying on the promises of said defendant, as aforesaid,” became the purchaser. This was a material allegation, and one required to be proved affirmatively, as much as the allegation of the defendant’s promise itself; for if, notwithstanding the promise, the plaintiff did in fact purchase at his own risk, independently of the promise, and not relying and acting upon it, he [56]*56cannot recover. But how can this allegation be sustained, otherwise than by the direct testimony of the plaintiff, or of his agent, as to the effect of the promise, operating upon his mind, as a controlling motive or inducement for the purchase ?
The mere intention of a party, not manifested by, nor accompanying, any act or declaration, is, in general, not admissible to affect the rights of another, but when the intention of a party becomes material, it may be shown, either directly or from circumstances ; and the party himself, if a competent witness, may testify to his intention, unless prevented by some other principle of law applicable to the particular case. Hale v. Taylor, 45 N. H. 407, and cases cited; Norris v. Morrill, 40 N. H. 401; Furbush v. Goodwin, 25 N. H. 451; Graves v. Graves, 45 N. H. 323; Gilman v. Moody, 43 N. H. 244; Delano v. Goodwin, ibid 203 ; Cram v. Hadley, 48 N. H. 191.
The witness says he would not have purchased, but for the defendant’s promise, and the evidence amounts to precisely this : That the plaintiff, through his agent, was induced thereby, to purchase the property, and thus, and thus only, save by independant circumstances, the essential affirmative allegation of the declaration is sustained.
In another view the evidence was properly admitted. The main issue was as to whether or not the defendant promised, as the plaintiff alleged. The plaintiff’s evidence tended strongly in one direction, that of the defendant tended perhaps as strongly in the opposite direction; and being thus conflicting, it was for the jury to find the fact to be either oue way or the other, according to the preponderance of the evidence; and if the direct evidence was evenly balanced, then they must consider and weigh the probabilities. And the testimony of the witness that he should not have bid upon the property at all, but for the assurance then given that he should have possession of the property by the first day of October, tended to show whether it was more probable than otherwise that such assurance was made. It was upon this principle that in a case where the parties were in direct conflict with regard to the price agreed upon in an admitted contract for the hiring of certain services, evidence was held to be admissible, not as upon quantum meruit but as bearing on the probabilities of the case, to show what was the usual and common price paid at that, time and place for similar services. Swain v. Cheney, 41 N. H. 232.
Anri, in another case, where the testimony was conflicting as tó the price agreed upon in a sale of personal property, it was held competent to show the value of the property at the time of sale as tending to show what the real contract was, Kidder v. Smith, 34 Vt. 294. We perceive no error in the instructions with regard to damages.
The declaration alleges, among other things that by reason of being kept out of the premises two months, the plaintiff was prevented from making suitable and proper repairs, on said buildings, [57]*57which repairs were absolutely necessary. The evidence is that* being kept out of the occupation of the premises during these two months, he was obliged to make these repairs at an increased expense (being done in cold weather), above what they would have cost if they could have been made in October, and as it prevented him from making said repairs seasonably so as to open his house as a tavern before spring — whereas if he could have had possession on the first of October he could have got his repairs made so as to have opened his house in the fall or early winter.
The jury were at liberty to find as a result of the breach of the defendant’s agreement, whereby the plaintiff was excluded from the occupation of the premises till the first of December, that the essential repairs made after that time, prevented the profitable use of the premises till spring — such damages were the fair, legal and natural result of the injury complained of, and they are sufficiently alleged in the plaintiff’s declaration. Fabyan v. Russell, 34 N. H. 225 ; Sedgwick on the Measure of Damages 65.
Judgment on the verdict.