Sec 900

It is otherwise when an aggregate quantity of labor with interest thereon during the time he has been deprived of the use of such part, not exceeding six years. In Flu-reau V. Thornhill, 2 W. Black 1078, Blackstone, J., said: "These contracts are merely upon condition, frequently expressed but always implied, that the vendor has a good title. If he has not, the return of the deposit, with interest and costs, is all that can be expected.' In Statts V. Ten Eyck, 5 Caines, 111, it was held that 'under a covenant of ownership, seizin, power to sell, and for peaceable enjoyment, if the vendee be evicted he can recover only the value of the land at the time of the purchase, with interest for so long a time as he pays mesne profits, and the costs of ejectment, that he brought against him, but not those of the action for mesne profits.' In that case the consideration paid was taken as the value of the land, and Kent, C. J., in his opinion, says that ' the interest ought to be calculated on the consideration sum.' Page 115. That case was followed and approved in Pitcher V. Livingston, 4 Johns. 1; Caulkins V. Harris, 9 id. 324; Bennett V. Jenkins, 13 id. 50. See, also, Cox V. Henry, 32 Penn. St. 18; Willson V. Willson, 25 N. H. 229. In Pitcher V. Livingston the value was restricted to the amount of the consideration paid. In Caulkins V. Harris the grantee held possession for fifteen years before he was evicted, but he was only allowed interest on the consideration paid for six years, because that was the limit of time for which he was answerable for mesne profits, and the same rule was adopted in Bennett V. Jenkins and Cox V. Henry. The rule that the recovery shall not exceed the amount of the consideration paid and interest has been extended to covenants against liens and encumbrances in several of the states. Grant V. Tallman, 20 N. Y. 191; Dim-mick V. Lockwood, 10 Wend. 142; Cox V. Henry, 32 Penn. St. 18; Willson V. Willson, 25 N. H. 229; Foote V. Burnett, 10 Ohio, 317. The rule thus stated and the cases cited in support of it are in harmony with the decisions of this court. Rich V. Johnson, 2 Pinney, 88; Blossom V. Knox, 3 id. 262; Pills-bury V. Mitchell, 5 Wis. 17; Noonan V. Ilsley, 21 id. 140; Nichol V. Alexander, 28 id. 118. But where, as in this case, there is a failure of title to only a fractional portion of the land purchased, is the same rule of damages applicable ? In Morris V. Phelps, 5 Johns. 49, the title to one-sixth of the two tracts described in one deed failed, and the title to five-sixths of the tract described in another deed failed, and Kent, C. J., giving the opinion of the court, makes this statement, and cites from the Year Books and Coke in support of it: ' The plaintiff was entitled to recover damages only in proportion to the extent of the defect of title. This is an old and well-settled rule of damages, that if one be bound to warrant, he warrants the entirety; but he shall not render in value but for that which was lost.' He concluded thus: ' There is then no law or reason why the plaintiff should recover more than one-sixth of the consideration-money and interest for the two tracts mentioned in the first count, and five-sixths of the consideration-money and interest for the tract contained in the second count ?' To the same effect are Guthrie V. Pugsley, 12 Johns. 126; Wager V. Schuyler, 1 Wend. 553; Dim-mick V. Lockwood, 10 Wend. 142; Cornell V. Jackson, 3 Cush. 506; Partridge V. Hatch, 18 N. H. 494; Ela V. Card, 2 id. 175."

Otherwise when aggregate is contracted for.

1 See Benj. on Sales, sec 689; Lovatt V. Hamilton, 5 M. & W. 639; Reuter V. Sala, L. R. 4 C. P. D. 239; Philbrook V. Belknap, 6 Vt. 383; Ripley V. Chip-man, 13 Vt. 268; Olmstead V. Beale, 19 Pick. 528; Croninger V. Crocker, 62 N. Y. 151; Highland Chem. Co. V. Matthews, 75 N. Y. 145; Martin V. Schoenberger, 8 W. & S. 367; Hartley V. Decker, 89 Penn. St. 470; see supra, sec 552.

2 Weber V. Clark, 24 Minn. 354.

3 Graver V. Scott, 80 Penn. St 88; see Quigley V. De Haas, 82 Penn. St. 267; see supra, sec 552.

4 Kerr V. Shrader, 1 Weekly Notes, 33.

5 See supra, sec 303 et seq.; sec 580, 716, and particularly cases cited supra, sec 716.

6 Supra, sec 316. In Reuter V. Sala, L. R. 4 C. P. D. 289, the plaintiff agreed to sell the defendants "about.

25 tons (more or less) Penang black pepper, October and / or November shipor ment from Penang to London, the name of vessel and particulars to be declared within 60 days from date of bill of lading. The plaintiffs declared within the stipulated time 25 tons, by a vessel called the Borga, but only 20 tons complied with the terms of the contract as to shipment, and no further declarations were made. It was held by Cotton and Thesiger, L. JJ., that the contract was entire, and that the defendants could not be compelled to accept the 20 tons." Brett, J., diss. - "I cannot consider," said Cotton, L. J., "the case of Brandt V. Lawrence, L. R. 1 Q. B. D. 344, as laying down a general rule of construction, but merely as deciding that the contract in that case having regard to the words ' vessel or vessels' was divisible.".