Page:North Dakota Reports (vol. 1).pdf/445

 erty." It is said that the breach in this case, such as it is, extends to the whole property, and that under the. statute the damages would be the entire consideration. Wedo not, however, consider the statute as laying down an ironclad rule of damages that cannot be changed or varied. When the statute says that the detriment for the breach of the covenants is "deemed to be," we understand it to mean that primarily, and in the absence of proof of especial circumstances, that would be the general rule, but that the rule as thus announced is subject to the same variations as the common-law rule that existed prior to the enactment of the statute.

It appears in this case that appellant first conveyed to respondent by quit claim deed, under which respondent went into possession. Subsequently, but without any new or further consideration, on respondent’s request, appellant executed and delivered the warranty deed containing the covenant on which this action was brought. Appellant contends that the warranty deed was without consideration, and hence the covenant was of no binding force. The findings give us no definite information as to why the second deed was executed. It may be that the original contract of sale contemplated a warranty deed. There is nothing in the findings to negative that idea, and it is hardly to be presumed that a party would have assumed the liabilities arising upon these covenants unless under some obligation to do so. In the present state of the record, we cannot hold that there was any error on this point. By reason of the error in the assessment of the damages, this case is remanded tc the district court of Grand Forks county, with instructions to reduce the amount of the judgment to six cents damages. Appellant will recover costs of this court. Modified and affirmed. All concur.

, C. J., having been of counsel, did not sit in the hearing of the above case; Judge, of the first judicial district, sitting by request.