Swall v. Clarke

51 Cal. 227

• Court: California Supreme Court
• Decided: July 1, 1876
• Docket: No. 4863
• Status: Published

Opinion

By the Court:

Admitting that Clarke broke his covenant to Center, it does not necessarily follow that Swall, assignee of Center, is entitled to recover of Clarke the whole amount of the payments made by Huff to Chandler. Certainly, if Huff had actually paid to Swall the whole amount of the note without claiming a deduction on account of the payments made to Chandler, Swall could not support a claim against Clarke for the amount so paid to Chandler. There is no difference in principle between the supposed case and the one actually appearing here. Swall has not been deprived of the sum paid to Chandler, and therefore has lost nothing, and being, as he appears to be, a bona fide holder of the Huff note, for value and without notice of the payments made to Chandler, he cannot suffer loss by reason of such payments.

In order to support a recovery, such as was had in the court below in this case against Clarke, there must not only have been a breach of the agreement on his part, but some loss or damage resulting to the promisee, Center, or his assignee, the plaintiff here.

Judgment and order denying a new trial reversed and cause remanded.