This is an action of covenant broken. The defendants, by their deed dated October 7th, 1845, conveyed to the plaintiff an estate in Boston, and covenanted that the premises were free from all incumbrances. The breach alleged was a lease made by the defendants of the premises dated September 20th, 1844, for three years; that tile .essee was in possession under the lease; and that the lease was in full force at the time of the conveyance to the plaintiff. The lease had about two years to run at the time of the conveyance. The object of the suit is to recovei damages for this incumbrance upon the estate. The verdict was for the plaintiff, and the defendants move to set it aside as against the evidence, and for a new trial on account of some of the rulings of the judge at the trial.
No question has been made as to certain of the ruling’ which are set out in the report, and the court have therefor’ had no occasion to consider or to express any opinion upoi them.
It appeared that the plaintiff gave his note for $10,500 of the purchase money, secured by a mortgage of the premises The note was to run five years at five and a half per cen' interest. It appears, that at the time of the transaction, on»' of the defendants gave the plaintiff an obligation that h* should be required to pay but $520 interest annually, instead, of the interest expressed in the note, and that this defendant alone would pay the taxes on the estate up to Septembei, 1847. It was maintained, on the part of the defendants, that this arrangement was an accord and satisfaction for the incumbrance of the lease; and the question being left to the jury upon the evidence, and the jury not having found in accordance with the defendants’ position, a motion is now made to set aside the verdict as against the evidence.
We do not see how this evidence could be regarded as establishing an accord and satisfaction. This agreement as to the interest and taxes was entered into at the time of making the deed, and before there was any breach of the covenant *204It was a part of the same transaction. If this agreement shows any thing, therefore, it shows that the lease should have been exempted from the deed. But not having been exemnted from the deed, the evidence was not of a character to control the legal effect and operation of the covenants in the deed.
' Another objection, on the part of the defendant, is, that evidence was permitted to be given to the jury, that the plaintiff bought the estate for the purpose of selling the same again,' and also evidence consisting of the opinion of persons as to the effect of the lease upon the sale of the estate; and that the jury gave their verdict on the principle, that the plaintiff had purchased the estate with a view to sell it again, and awarded damages on account of the injurious effect of the lease upon the sale. It does not appear, that the plaintiff, at the time of the purchase, made known to the defendant, that he was making the purchase with a view to sell again; or that the defendants had any knowledge that the plaintiff was purchasing for any particular purpose; or that the estate was sold to the plaintiff by the defendants to sell again, or for any particular purpose.
Under these circumstances, the court are of opinion, that it was erroneous to permit the plaintiff to go into evidence as to the motives by which he was actuated, and as to the objects which he had in view in making the purchase, in order to enhance the damages, when no notice was given to the defendants of such motives and objects. The defendants surely ought not to be affected by secret purposes and plans of the plaintiff, which were not made known to them. There are cases, .where purchases are made expressly for particular purposes, and where the party may be liable for extrinsic damages, on account of the loss of the particular purpose or object. But this is not within that class.
Further, the effect of this lease upon the sale of the estate, which appears to be the ground on which the damages were assessed, does not appear to the court to be the true rule of damages in such a case. What effect the lease would have *205upon the sale must in its very nature be imaginary, and can be supported only by speculative opinions and conjectures; and, of course, in this case, the effect of the lease on the sale was shown only by the conjectural opinions of witnesses. This is quite too loose and uncertain a mode of estimating damages.
It is laid down as a rule, in several cases, that the profits which a party has failed to make cannot be taken into account in estimating the damages for a defective title to land.
So, in the contract of marine insurance, which is eminently a contract of indemnity, an agreement to insure a cargo will not, in case of loss,. include the speculative profits of the adventure, though profits may be expressly and especially insured. So, if the title to premises leased fail, the lessor is not bound to indemnify the lessee, for a loss of custom in a business which he may have established on the premises. And, in general, the damages for a breach of covenant or obligation must be such as the party suffers in respect to the particular thing which is the subject of the contract, and not such as may have been accidentally occasioned, or supposed to be occasioned, in his business or affairs.
In New York, in the case of Rickett v. Sneider, 9 Wend 423, it was held, that when the ctivenant against incumbrances is broken, by reason of an unexpired term, which is the present case, the rule of damages is the annual value of the estate, or the annual interest on the purchase money. This rule may do justice in some, perhaps in many, cases ; but this court is not prepared to adopt it as a general rule. When the incumbrance has been removed, the general rule in this court fixes the damages at the amount paid to remove the incumbrance. The party may recover any just and reasonable sum, which has been expended to remove the incumbrance. The general doctrine on the subject is thus laid down by this court, in the case of Harlow v. Thomas, 15 Pick. 66, 69 : “If the covenantee has fairly extinguished the incumbrances, he ought to recover the expenses necessarily incurred in doing it. If they remain and consist of mort*206gages, attachments, and such liens on the estate conveyed as do not interfere with the enjoyment of it by the covenantee, he can recover only nominal damages. But if they are of a permanent nature, like the perpetual servitudes in this case, such as the covenantee cannot remove, he should recover a iust compensation for the real injury resulting from their continuance.”
The rule is, that for such incumbrances as a covenantee cannot remove, he shall recover a just compensation for the real injury resulting from the incumbrance. Though it is desirable to have as definite and precise rules, upon the subject of damages, as are practicable, it seems impossible to establish any more precise general rule in this class of cases. Cases must go to the jury for an assessment of damages on this general principle, and with such instructions, as may be proper and applicable to the circumstances of each case. One of the modes in which the damages may be assessed is the annual value, and that may perhaps be found to be the just rule in this case.
The damages here having been assessed upon an erroneous principle, the verdict must be set aside, and a new trial granted.