John F. Pond vs. William T. Merrifield, 12 Cush. 181

By the Court. In an action on a penal bond, there being a plain breach in not finishing the building within the time limited by the condition of the bond, as appears by reference to the contracts, there must be judgment for the plaintiff, at least for nominal damages. But the question is, whether extra insurance, occasioned by the delay in completing the building, and paid by the plaintiff, can be recovered in this action. We think not.

Take the whole finding of the jury, and the result is, that by the extra work of the defendant, over and above the contract, the estate was benefited and enlarged, to an amount more than sufficient to counterbalance this charge, and all other failures of the defendant; so that the estate which was the security to the plaintiff under his mortgage from the medical institution, was made so much more valuable. The plaintiff has a security for this premium, in his mortgage. Should the estate be redeemed, he will have this same premium repaid.

If not, the estate comes into his hands, increased in value more than it would have been by the mere performance of the contract, and more than sufficient to counterbalance this premium. It stands, therefore, upon the same footing, as the other failures to perform the contract according to its exact terms. Judgment for the plaintiff for one cent damages. Thomas, J., did not sit in this case.