Opinion of the Court, by MONELL, Ch. J.

cumbrance upon the property, until its actual confirmation by the proper authority.

Under these circumstances, the parties undertook to determine for themselves, their legal rights and obligations; and they arrived at the conclusion, that under the terms of the contract, the vendor was bound to pay the incumbrance.

The effect of the retention of the money by the defendant, was to satisfy the covenant in the deed. The contract, by the execution and delivery of the deed, had become merged in the latter; and as the covenant against incumbrances in the latter was unqualified, it left a present liability of the grantor (plaintiff) upon that covenant. But retaining of the plaintiff's money, a sufficient sum to pay and discharge the incumbrance, was so far a satisfaction of it, as to deprive the vendee of all right of action, for any breach of the covenant in the deed, by reason of the existence of the incumbrance.

Such being the effect of the retention of the money by the defendant, it became absolutely his to do with as he pleased. He could discharge the incumbrance; but if he omitted to do so, he could have no recourse to the plaintiff's covenant.

Nor was the plaintiff, after such payment to the defendant, under any obligation to discharge the incumbrance. He had paid it, in effect, by the arrangement with the defendant, and thereby satisfied his covenant.

Subsequently the parties met, under a claim made by the plaintiff, that there had been an error in the construction of the contract, and, in effect, reviewed their former conclusion; and then, as found by the verdict, agreed upon an interpretation of the agreement, which cast the burden of the incumbrance upon the defendant.

The was no mistake concerning the facts, necessary

Opinion of the Court, by MONELL, Ch. J.

to be known by either party. They each knew, as before, the precise terms of the agreement, and the time the incumbrance had become a lien upon the premises; and then they determined, as matter of law, that the burden should fall upon the vendee.

Thereupon the defendant voluntarily returned the amount to the plaintiff.

facti

The recovery of this sum by the defendant, upon the counter-claim set up in his answer, if it can be recovered at all, is not upon any ground of a breach of the covenant against incumbrances, which gronnd I will presently examine, but upon the ground of its having been paid thrugh an excusable mistake. The maxim of the law is "Ignorantia excusat,-Ignorantia juris non excusat.” There is no pretense that the payment was made in ignorance of any fact, it was essential the parties, or either of them, should know, to predicate their judg ment. But with knowledge of all that was necessary of the existing facts, the parties, without deception or fraud, and in entire good faith, saw fit to construe and interpret for themselves, the contract they had made, and to decide from its terms, and their own knowledge of their intentions, which of them should remove the incumbrance.

There may have been a mistake of law. Under the somewhat uncertain and ambiguous phraseology of the contract, it may not have been clear, what precisely was intended; and a literal reading would, perhaps, require, that the vendor should pay all incumbrances, which might become liens after the date of the contract. Or, construed by the probable intention of the parties, it might mean to bind the vendor against such incumbrances only, as had become liens at or prior to the date of the contract.

In this doubt of the true meaning of the words employed, the parties themselves had recourse to their

Opinion of the Court, by MONELL, Ch. J.

own knowledge of their intention, and by such knowledge, put their construction upon the words. And acting upon such construction, the money was paid.

There was no mistake in fact, and there is no remedy for a mistake of law.

But I do not think there was any mistake of law. Construing the agreement by the intention of the parties, it is evident that it was meant, that the vendor should be responsible only for such incumbrances as were liens at the date of the contract; and that the vendee should take title subject to such as might accrue afterwards. That would be a reasonable construction, and such as would conform the contract, to the usual understanding between parties, on the sale of real estate, where time is required by the purchaser, for the examination of title.

The effect, as has been seen, of the retention by the defendant of the amount of the assessment, was to satisfy the covenant in the deed, at least for such time as he retained the money. But, I think, when he returned it to the plaintiff, although it was a voluntary payment, it revived the covenant in the deed, so that, if the defendant had paid the assessment, he might have resorted to the covenant for redress; with what result, however, would depend upon the determination of several questions, not necessary to be examined here; among them, whether, upon a construction of the contract, the plaintiff was to pay the assessment; and whether the contract was merged in the deed.

But there is an insuperable difficulty in the defendant's recovering at all, or at least more than nominal damages, for a breach of the covenant. He has not paid the assessment.

It is, I believe, well settled, that until actual payment, the covenantee can have only nominal damages

Opinion of the Court, by MONELL, Ch. J.

(Delavergne v. Norrris, 7 Johns. 358; Hall v. Dean, 13 Id. 105; Standard v. Eldridge, 16 Id. 254; Giles . Dugro, 1 Duer, 331, 335; Grant o. Tallman, 20 N. Y. 191).

The only departure, or perhaps I should say apparent departure, from the rule above stated, is the case of Rector, &c. of Trinity Ch. o. Higgins (48 N. Y. 532), where it was held, that a lessor might recover an assessment laid upon the demised premises, which the lessee had covenanted to pay, notwithstanding the lessor had paid nothing. But that decision was on the ground that the covenant was affirmative and not collateral; and a distinction is drawn between a pronise and an indemnity.

That case, however, does not disturb the unbroken current of decision, fixing the measure of damages for a breach of the covenant against incumbrances.

Inasmuch, therefore, as at most, the defendant could be allowed only nominal damages, it would not be ground for granting a new trial (Rundell v. Butler, 10 Wend. 110).

So far as there was any dispute in the evidence, the defendant had the benefit of having it settled by the jury. The jury were allowed to find, had they seen fit to do so, that some fraud, deception or unfairness was practiced upon the defendant; and had they so found, they were instructed by the court, that the defendant should have their verdict. This was quite as favorable to the defendant, as, upon the evidence, he had the right to expect. And having had the question of fact found against him, he must abide by the result.

The objections to some evidence in respect to the contract and deed, without producing these instrument, if they were sound, were afterwards removed by their production and reading in evidence, by the defendant.

But the objections were properly overruled. The

Statement of the Case.

production of the papers was not necessary, and the oral testimony was admissible without them.

The judgment and.order must be affirmed, with costs.

FREEDMAN, J., concurred.

JOSEPH SPYER AND BENJAMIN B. VALENTINE, PLAINTIFFS, v. C. J. FISHER, Defend

ANT.

I. BROKER ACTING FOR BOTH BUYER AND SELLER.

1. If there is no fraud or concealment, and each party is aware that the broker is acting for the other as well as for himself, the execution by the broker of bought and sold notes, and the delivery thereof to the respective parties, constitutes a valid contract between them.

So also,

2. RATIFICATION.-If one of the parties, not knowing at the time he employed the broker, that the broker was employed by the other, receives the bought or sold note (as the case may be) showing that the broker was also employed by and acting for the other party, and he makes no objection on the ground of any want of authority on the part of the broker to bind him, but repudiates the contract for other and different reasons, he ratifies the act of the broker done in his behalf, and the contract is binding on him.

3. FRAUDS, STATUTE OF.

4. The bought and sold notes signed by the broker under such circumstances satisfy the statute, and take the case out of its operation.

II. OBJECTION.-TRIAL.

1. An objection not taken at the trial cannot be raised on appeal. III. SUPERIOR COURT,-JURISDICTION OF, UNDER CHAPTER 239 OF THE ACT OF 1873.

1. Under the decision of the court of appeals in Landers v. Staten Island R. R. Co., 14 Abb. N. S. 346,-Held, that said act, so