Perley, J.
By the written agreement of June 8,1844, the plaintiff was to have fifteen hundred dollars for building the house, and was to be paid by receiving, so far as they would go, the five notes and mortgage of Haskell. In execution of this agreement the mortgage was assigned without covenants of warranty, and the notes indorsed to the plaintiff “without recourse.”
The obvious meaning of the agreement is, that the notes and mortgage were to be taken in payment, and at the risk of the plaintiff; and the assignment and indorsement were made in conformity with this construction. Parol evidence of the undertaking by the defendant, that the notes were well secured, and that the land mortgaged was free from other incumbrance, is entirely inconsistent with this construction of the written contract and cannot be received to support either of the counts in the declaration, which are founded on such undertaking.
Nor can the plaintiff, under his count for money paid, recover the amount of the prior incumbrance which he has been obliged to discharge. In general indebitatus assumpsit the consideration of the promise which the law implies, is an existing debt, due from the defendant to the plaintiff. The declaration in that form of assumpsit alleges, that the defendant owed the plaintiff a debt, and in consideration of the debt promised to pay the amount due. And assumpsit in this form can be maintained only in cases where the action of debt is a concurrent remedy. But debt will not lie, where the claim is for damages wholly unliquidated and uncertain. 1 Chitty’s Pleading, 98 ; Lawes on Pleading in Assumpsit, 418, 419.
If the evidence introduced by the plaintiff is sufficient to maintain an action in any form, his damages are vrholly unliquidated. Where one purchases an absolute title to land and takes a covenant against incumbrances, if he is compelled to discharge an existing mortgage, the measure of damages, as a general rule, is the amount paid to discharge the incumbrance. But the plaintiff, for this purpose, cannot be regarded as a purchaser of the land. He took the mortgage as security for the payment of the notes. His interest in the land is incidental to his debt and limited to the amount of it. When the debt is paid, his claim is satisfied, whether payment is made in money or by an appro-* priation of the land under the mortgage. He has taken the latid and foreclosed his title. There is nothing in the case that ascertains the value of the land. If it is equal in value to both the debts secured upon it, then both the debts have been fully satisfied, and the plaintiff has sustained no injury. The case shows no claim liquidated with any such certainty as will warrant a recovery under this count for money paid, laid out, and expended.
Verdict set aside, and judgment entered for the defendant.