¶1The promise of the defendant Ryan was in consideration of the sale to him of the yellow house and agreement to deliver the same on his land. The stipulations of the parties to the contract cannot be considered as independent; the object was to exchange the house owned by Gates for the shanty of Ryan and the sum of $200 to be paid by Ryan. When therefore after the house fell down during the process of removal, and the materials were appropriated by Gates to his own use, an action was brought by Ryan against him for the non-performance of the contract, it was necessary, in order to ascertain the damages sustained by Ryan, to consider that Ryan would be released from the further performance of his stipulations by the failure of Gates to perform; and the measure of such damages would be the fair value of the contract broken by Gates, over and above that which Ryan had still to pay or perform in consideration for it; an inquiry which of course included an examination of the comparative values of the house and shanty as well as the amount of money to be paid by Ryan. It must be presumed that the court adopted the true rule in rendering damages in favor of Ryan to the full amount of the penal sum named in the contract.
¶2The plaintiff apparently proceeds upon the idea that, because he in the former action paid damages for the non-performance of the contract on his own part, he is now in substantially the same situation that he would be if he had performed it, and is therefore entitled to call upon the present defendant for the notes amounting to $200. This is erroneous; the damages which he has paid must have been computed upon the theory that the contract was broken and that the defendant was not bound further to perform.
¶3*599Whether the taking of the windows from the shanty, which the present plaintiff after the falling of the house assigned as a reason for considering his liability under the contract at end, justified him in so doing, was a matter necessarily passed upon and settled by the former suit. Judgment affirmed.