384 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

HOGAN v. KYLE . forfeit the first payment that had been by , (35 Pac . 399, 7 Wash . 595 .) made to him the defendant thereunder aforesaid . At the outset of the trial , ap Supreme Court of Washington . Jan. 6, 1894 . pellant objected to the introduction of any Appeal from superior court , King county ; testimony in behalf of the plaintiff on the , Judge Mason Irwin . ground that no cause of action was stated by Hogan against George Action F . V. it. in the complaint . This objection was over Kyle buy for breach of contract to real ruled . At the conclusion of respondent ' s judgment plaintiff , estate . From a for de testimony , appellant moved for a nonsuit , fendant appeals . Reversed . which motion was overruled . Thereupon , Preston , Albertson & Donworth , for appel he rested upon his motion , and did not offer lant. H . B. Slauson , for respondent . any testimony ; and the judge instructed the jury to bring in a verdict against the appel . DUNBAR , C. J . On the 27th day of Feb lant for the balance of the contract price . ruary , 1890 , respondent and appellant entered with interest ; which being done, judgment into a written contract wherein respondent was entered thereon , from which judgment agreed to sell the appellant certain real estate | appellant has appealed . At the commence for the sum of $2,500 , one - third of which was ment of the action the appellant moved to paid at the time of the execution of the con have the case transferred to the equity calen . tract ; appellant to pay the balance of the pur dar , which motion was denied . The demur chase price in two equal installments, the first rer and the motion for a nonsuit raised sub of which was to be paid on the 27th day of stantially the same questions . May, 1890, and the second on the 27th day The judgment in this case will have to be of August , 1890 . Time was expressly made reversed , in any event , for under its terms the the essence of the contract . The appellant respondent recovers the full purchase price , paid no part of the purchase price , except the and is allowed to retain the land which rep sum which was paid at the time the con resented the purchase price . In this case tract was executed . It does not appear that these are dependent obligations upon which defendant entered into possession of tho the respondent is suing . When the first in property , or exercised any control over it. stallment became due, he could have recor On November 14 , 1892 , suit was commencea ered the amount then due as upon an inde by the respondent to recover a money judg . pendent contract ; but having elected to wait ment against the appellant for the amount until the last installment became due , and of the two unpaid installments , with in upon the payment of which defendant would terest. The complaint simply alleged the be entitled to a deed, the obligations become making of the contract , failure to pay , the dependent . They all relate back to the con ownership of the property , and the tender tract , and respondent cannot sustain an action of a good and sufficient deed prior to the for either installment without proof of per commencement of the action . A demurrer formance or readiness to perform on his part. was interposed to the complaint on the McCroskey v. Ladd , (Cal.) 31 Pac . 558 , and ground that it did not state facts sufficient cases cited . In that case the court said : to constitute a cause of action . The de “ There is but one single cause of action , murrer was overruled , and the defendant one and indivisible . The defendant, if he answered , alleging possession in the re would maintain his deed , must pay all ; and spondent , but denying his power to give the plaintiff , if he would recover , must show good title . Alleging that respondent had such a performance on his part as would en never demanded of appellant the contract title him to all the unpaid consideration ." It price of the land at any time prior to Novem is not enough that the deed was tendered ber 14, 1892 , the date of the commencement of at any particular time, but the tender must the action , and never tendered to appellant be kept good so that it may be taken into con . any deed or conveyance purporting to consideration in the entry of the judgment vey said land until said 14th day of Novem . Plaintiff here simply shows that the tender ber , 1892, and never at any time conveyed had been made prior to the commencement said premises ; that, long prior to said last of the action , and it is therefore insufficient named date , appellant had informed and excepting on the theory that the judgment notified respondent that he did not have or could be rendered independently of the per claim any further interest in said property , formance of his part of the contract by the and that he would not pay any further in . vendor , which would result in allowing the stallment provided for by said contract , and vendor to keep both the money and the land . that the plaintiff did not, up to said Novem . On that proposition we quote from Warvelle ber 14, 1892 , assert any further right to the on Vendors , (page 961 :) " There are cases , balance of said contract price , nor dissent both in England and the United States , to nor deny said claim of defendant that he where , on the vendee 's default , the vendor , was no longer bound by said contract ; and having offered to perform , has been permit that long prior to said last -named date the ted to recover as damages the whole purchase plaintiff had exercised said option reserved price . The injustice of such a measure , how to him under said contract , and had elected ever , is apparent on its face , for it gives the to rescind said contract , and to retain as a vendor his land , as well as its value , and is BREACH BY VENDEE OF AGREEMENT TO BUY . 385

not now regarded as a correct rule in eithering the complaint amended so as to incorpor country ." The rule in such cases is that the ate the allegations of tender sought to be set vendor has a right to the fruits of his bar up in the reply , the action must equally fail, gain , and is entitled to compensation for any for the complaint , on its face, shows such a loss he may suffer by reason of its noncon delay on the part of the respondent in bring summation . What his damages are , in such ing his action that, unexplained , it amounts circumstances , must be alleged and proven , to a waiver of respondent 's rights under the like any other fact in the case . Under one contract , and an acceptance of the forfeiture . set of circumstances , the measure of dam . " The court of chancery was at one time in ages might be one thing , and under other cir clined to neglect all consideration of time in cumstances the measure might be governed the specific performance of contracts for by an entirely different rule . The land may sale, not only as an original ingredient in have deteriorated in value , and his damages them , but as affecting them by way of laches . would be great, or it might have increased in But it is now clearly established that the de value, and the damages would be nominal. lay of either party in not performing its As is well argued by the appellant in this terms on his part, or in not prosecuting his right case , so far as the complaint reveals , the land to the interference of the court by the may be worth as much or more than it was institution of an action , or, lastly , in not dili when the agreement was executed ; and the gently prosecuting his action , when instituted , respondent , having received an advance pay may constitute such laches as will disentitle ment , which is forfeited , may actually be him to the aid of the court , and so amount , benefited . The cases cited in Warvelle fully for the purpose of specific performance , to sustain the announcement in the text, both as an abandonment , on his part , of the con , to the unfairness of allowing the vendor to tract ." Fry Spec . Perf. § 1070. " The doc retain the land and the money , and as to the trine of the court thus established , therefore , measure of damages . In Railroad Co. v. is that laches on the part of the plaintiff, Evans , 6 Gray , 25, it was held that, in an (whether vendor or purchaser ,) either in exe action at law by the vendor to recover dam cuting his part of the contract , or in apply . ing , ages for the breach of a contract for the sale to the court will debar him from relief . of land , the measure of damages is not the ‘ A party cannot call upon a court of equity contract price , but the difference between for specific performance ,' said Lord Alyanley, that price and the price for which the land M . R ., (u) 'unless he has shown himself ready , could have been sold at the time of the desirous , prompt , and eager.' Or, to use the language breach . Under this rule , which seems to us of Lord Cranworth , 'Specific per to be an equitable one , and one which is formance is relief which this court will not give, adopted by many courts , the complaint is unless in cases where the parties seek . ing plainly deficient. The case last above cited it come promptly , as soon as the nature also holds that a vendor may enforce in equi of the case will permit .' ” Id . $ 1072. To the ty the specific performance of a written con same effect, Pom . Cont. 408 , and cases cited . tract for the sale of land . In fact , the pre It is true that a few of the states, notably vailing modern authority is that in a case Ohio , hold that the laches must fall outside of this kind the vendor can either sue at law of the statutes of limitation , but the great for damages , or resort to equity for specific weight of authority , as we have been able to gather , contrary ; performance . Mr. Pomeroy , in his work on it from the cases is to the Contracts , (page 6,) bases his adherence to this and relief has been refused on the principle doctrine on the ground of mutuality . The that acquiescence for an unreasonable length remedy which is enjoyed by one party to a of time after the party was in a situation to contract must be enjoyed by the other , and enforce his right, under the full knowledge as an example he gives the simplest form of of the facts , was evidence of a waiver or contract for the sale of land, when the vendor abandonment of right, and what shall be agrees to convey , and the purchaser merely deemed a reasonable timemust be determined promises to pay a certain sum as the price . from the circumstances of the case . Six Since the latter may , by a suit at equity , cca months, in some cases , might be as unreason pel the execution and delivery of the deed , able as six years in others . It must be borne the former may also, by a similar suit , en in mind that a distinction is made , in the dis force the undertaking of the vendee, although cussion of the cases , between the cases where the substantial part of his relief is the re time is made the essence of the contract , and covery of money . “ A suit in equity against where it is not ; and the conclusion deduced the vendee , to compel a specific execution of from the authorities is that where time is a contract of sale , while in effect an action made the essence of the contract the appar for the purchase money , has nevertheless al. ent delay or omission of duty must be ex . ways been sustained as a part of the appro plained , or the relief will not be granted . priate and acknowledged jurisdiction of such In this case time was made the essence of court, although the vendor has in most cases the contract , by express terms. The com another remedy by an action at law upon the plaint shows that there was no attempt to en agreement .” Warv . Vend . pp. 779, 780, and force the claim until two years and three cases cited . So that, considering it either | months after the contract matured , and makes as a legal or equitable action , and consider - | no explanation whatever for the delay . Nor LAW DAM . 3d Ed. - 25 386 BREACH OF CONTRACTS RESPECTING REAL ESTATE . are the averments of the complaint strength - it must exercise at the maturity of the con . ened by the proofs , for the proofs show that tract , - the time when he would have a right no demand , of any kind whatever , bad been to make the election ; and , as he did not pro made , on the part of respondent , until the ceed to enforce the contract , the appellant had day the suit was brought. The respondent a right to presume that , inasmuch as he had should not be allowed to speculate in values , taken no affirmative action , by tendering the so far as this contract is concerned ; to wait | deed , he had elected the remedy which was and see whether the value of the land would consistent with silence , namely , the accept enhance or depreciate before he made his ance of the forfeiture ; and , considering the election either to enforce the performance rapid changes in value of the real estate in or accept the forfeiture. We think the pro this country , we think an unexplained delay vision of this contract , that, “ if the said of two and a quarter years ought to prevent party of the second part, his heirs, adminis the respondent from asserting his claim in a equity trators, or assigns , shall fail to pay the full court of . amount of either of the above -specified in The complaint, therefore , being insufficient, stallments and interest when the same shall either at law or equity , appellant 's demurrer become due , as above specified , the said party should have been sustained . This conclusion of the first part shall have the right, at their renders unnecessary the discussion of the oth option , to rescind and cancel this agreement , er errors assigned . For the reasons given , and in case of such rescission and cancellation the judgment will be reversed , with instruc all rights of the said party of the second part , tions to sustain appellant ' s demurrer to the his heirs and assigns, shall be terminated , complaint and all payments heretofore made on this contract shall be forfeited ," fairly construed , STILES , HOYT, SCOTT , and ANDERS , guaranties to the respondent a right which | JJ., concur . BREACH BY VENDEE OF AGREEMENT TO BUY. 387

MCGUINNESS v. WHALEN . | the loss to the vendor from the default of the vendee , and it may be that the (18 Atl. 158, 16 R . I. 558.) jury , upon proof of the second sale , would Supreme July , Court of Rhode Island . 13 1889 . find the damages to be the difference between Assumpsit . On demurrer to the declara the two bids and the expense of the second tion . sale ; but the question would be purely one of Edwin D . McGuinness and John Doran , damages , and they would not be shut up to for plaintiff . Edward D. Bassett , for de thatamount . McCombs v. McKennan , 2 Watts fendant . & S . 216 . In order to make the vendee liable in assumpsit for such difference and expense , DURFEE , C. J . The declaration sets forth in case of his default , it should be made a that atan administrator 's sale at auction , held | condition of the sale that in such case the February 28 , A . D . 1885 , by William W . property should be resold , and the vendee held Nichols , administrator de bonis non on the to pay such difference and expense . Adams estate of John Charlton , deceased , all the y . McMillan , 7 Port . ( Ala .) 73 , was a case of right, , title and interest of the decedent in real estate sold at auction , and afterwards re certain land described was struck off to the sold on default by the vendee . The declara defendant for $ 3, 100 bid by him , said sum tion contained a count like the special count being the highest bid therefor ; that the de . here . The court held that where a declara . fendant paid $ 150 down as earnest money ; tion does not aver, as part of the contract of that afterwards , at a time appointed , the ad - cale , a condition that the land shall be re ministrator was ready with his deed to con sold in case of such default , but only al vey the land in pursuance of the sale , but the leges the difference in price of the two sales , defendant refused to accept it , and pay over and as a consequence of the vendee 's breach the residue of said $ 3, 100 ; that subsequently , of his contract a liability on his part to pay on May 26, A . D . 1885 , the property was that difference , being framed on the supposi . again put up at auction by said administra tion that the difference is recoverable as on a tor, and struck off to William H . Washburn contract , and not as unliquidated damages , for $ 2, 150 , the highest bid therefor, and con the declaration will be bad on demurrer . , plaintiff veyed to him for that sum . The declaration Robinson v. Garth 6 Ala . 204 . The then proceeds as follows , to - wit : “ And the contends that the mode of declaring here plaintiff avers that on the 21st day of Novem used is proper , because the sale was judicial , ber, 1887 , he was appointed administrator | and in such sales the defaulting vendee is lia de bonis non of the estate of John Charlable for the deficiency on resale , whether the ton , deceased , in the place and stead of said terms of sale so provide or not . An admin Nichols , removed , whereby the defendant istrator 's sale , however, under our statutes , is became liable and promised to pay to the not a judicial sale , as was decided by plaintiff the difference between said sum of STORY in Smith v. Arnold , 5 Mason , 414 , 420 . $ 3, 100 and the costs of said second auction It has been held in Alabama that purchasers at sale , viz ., $40 . 17 , and the sum of $ 2, 150 , official sales who make default are liable by amounting to the sum of $990 . 17. " The implied contract for the deficit on resale . declaration also contains the common money Lamkin v . Crawford , 8 Ala . 153 ; Hutton v. count. The defendant has demurred to the Williams, 35 Ala . 503 , 513 . We do not find declaration generally , but both parties have the doctrine recognized elsewhere , ( 2 Freem . treated the demurrer as if it were simply a de Ex 'ns, 2d Ed ., § 313 ;) nor , in our opinion , murrer to the special count . We will so treat can an administrator 's sale be regarded as an it. The question , as it has been argued to us , official sale . In some states the defaulting is whether the count is good as a count upon I purchaser is liable for “ the deficiency arising a promise to be implied from the facts alleged . on resale " by statute . Alexander v . Herring, We think not. The contract which the de | 54 Ga . 200 . We have no such statute . The fendant entered into when he made his bid subject of the sale inder which the question was a contract to pay the price bid by him for here arises was real estate , the title to which the premises upon receiving a deed thereof , could not pass to the purchaser without deed . and , if on tender of the deed he refused Whether , if the subject had been goods and to complete the payment , he committed a chattels, the same mode of declaring would breach of said contract, and laid himself have been bad , is a question on which we ex . liable to an action upon it for damages . press no opinion . Demurrer , regarded as a In such action the measure of damage is demurrer to the special count , sustained . 388 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

may paid ALLEN v . MOHN . and retain whatever have been on such contract, and all improvements (49 N . W . 52, 86 Mich . 328.) thatmay have been made on said prem ises, and may consider and treat the party Supreme Court of Michigan . June 5, 1891. of the second part as his tenant holding permission , may , county ; over without and take Error to circuit court Brauch immediate possession of the premises , and Noah P . LOVERIDGE , Judge. remove the party of the second part there F . A . Lyon , for appellant. W . H . Lock from . ” Upon the abandonment of the erby , for appellee. contract and of the premises by defend . ant plaintiff had his choice of three reme , GRANT J . Plaintiff and defendant dies : ( 1) Bill for specific performance ; ( 2 ) made a contract, by wbich plaintiff agreed suit at law to recover the purchase price ; to sell to defendant certain real estate . I and ( 3) a repossession of the premises The contract was made in November , 1886. and a suit to recover damages for a breach In September , 1890 , defendant informed of the contract . The latter remedy is sup . plaintiff that he could not go on with the ported by the following authorities : Rail. contract , refused to pay the interest road v . Evans , 6 Gray , 25 ; Griswold v . Sa which was then due , and said that he bin , 51 N. H . 170 ; Meason v. Kaine, 67 Pa . would give up the contract . While the tes . | St. 126, 63 Pa . St. 335 ; Porter v. Travis , timony is not clear as to the circum 40 Ind . 556 ; Wasson v. Palmer , 17 Neb . stances under which plaintiff took posses . 330, 22 N. W . Rep . 773 . In such case the sion of the land , it appears to be conced measure of damages is the difference be . ed by both parties that defendant aban - | tween the contract price and the value doned the premises , and plaintiff there of the land at the time of abandoninent upon took possession . The contract con and re - entry , less wbat has been paid . tained the following clause : “ It is mutu This rule is just, and places vendor and ally agreed between the parties that the vendee upon a footing of equality and said party of the second part shall have mutuality . In order to deprive the ren possession of said premises on and after dor of this remedy it must either be ex date hereof, and he shall keep the same in cluded by the terms of the contract, or as good condition as they are at the date waived by his acts and conduct . In this hereof , until the said sum shall be paid as case the contract does not exclude it , nor aforesaid ; and , if said party of the second has the plaintiff waived it . The circuit part shall fail to perform this contract , court was in error in directing a verdict or any part of the same, said party of the for the defendant . Judgment is reversed , first part sball , immediately after such fail. with costs , and a new trial ordered . The ure , have a right to declare thesame void , other justices concurred . BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 389 , C . J . FLUREAU V. THORNHILL , DE GREY I think the verdict wrong

in point of law . Upon a contract for a pur

(2 W . Bl. 1078.) , , chase if the title proves bad and the vendor is ( )

incapable of without fraud making a good Easter Term , 16 Geo . III . C . P . , one I do not think that the purchaser can

plaintiff bought at an The auction a rent be entitled to any damages for the fancied

of £26 1s . per ann . for a term of thirty - two , goodness of the bargain which he supposes , , years issuing out of a leasehold house which he has lost . let for £31 6s . The sale was on the 10th of , , , J . of .

price . October 1775 The at which it was GOULD the same opinion ,

to paid a , knocked down him was £270 and he , J . of BLACKSTONE the same opinion . , deposit of 20 per cent . or £54 . On looking These contracts are merely upon condition , , into the title the defendant could not make frequently expressed , but always implied , that ; , it out but offered the plaintiff his election , the vendor has a good title . If he has not , to take the title its faults or

either with all , the return of the deposit with interest and

to receive back his deposit with interest and , costs is all that can be expected . For curios

. plaintiff on a costs But the insisted farther , ity I have examined the prints for the price

sum damages in the so good a for loss of , of stock on the last 3d of November when

bargain ; and his attorney swore , he believed three per cent . ' s sold for 8742 . About £310

the plaintiff bad been a loser by selling out must therefore have been sold to raise £270 . , of the stocks to pay the purchase money and And if it costs £20 to replace this stock a

their subsequent rise between the 3d and the , week afterwards ( as the verdict supposes ) ; of 10th no particular November but named the stocks must have risen near seven per , sum . given by the Evidence was defendant , cent . in that period whereas in fact there that the bargain was by no means advanta was no difference in the price . Not that it is

geous , ;

all circumstances considered and the ; material for the plaintiff had a chance of

auctioneer proved that he had orders to let gaining as well as losing by a fluctuation of go the lot for £250 . The defendant had paid the price . , the deposit and interest being £54 159 . 60 . , , J . , at

granting a into court : But the jury gave a verdict con NARES hesitated new ;

, , morning trary to the directions of DE GREY C . J . for trial but next declared that he con . , curred with the other judges £74 158 . 6d . allowing £20 for damages . , Davy , a moved for new trial against which Rule absolute for a new trial paying the ; Glyn shewed cause and by costs . 390 BREACH OF CONTRACTS RESPECTING REAL ESTATE

proposed BAIN v. FOTHERGILL . LORD CHELMSFORD the fol lowing questions for the consideration of the (L . R . 7 H . L . 158.) judges : English House of Lords . 1873 –74 . 1. Whether , upon a contract for the sale of Error to the exchequer chamber , which real estate , where the vendor , without his had affirmed a judgment below for defend default, is unable to make a good title , the ants in an action brought by Bain & Pater purchaser is by law entitled to recover dam son against Fothergill & Hankey to recover ages for the loss of his bargain ? damages for the breach by the latter of their 2. Whether the actual possession of the agreement to sell and transfer to the former property , the subject of the contract , is es a certain mining royalty known as “ Miss sential to bring the case within the rule laid Walter 's Royalty. " This royalty was held down in Flureau v. Thornhill , 2 Wm . BI. by one Hill upon condition that he would not 1078 ? assign or sublet without the lessors ' assent. 3. Whether, if the rule of law is correctly Hill died , and his executors contracted to laid down in Flureau v. Thornbill , 2 Wm . sell the royalty to Fothergill & Hankey. The Bl. 1078, the circumstances of the present executors applied to the lessors for consent case distinguish it, and take it out of that and they were willing to give it, provided rule ? Fothergill & Hankey would execute a du All of the judges answered the first two plicate containing the same conditions . The questions in the negative . Justice DENMAN consent was prepared and executed by the was of opinion that the present case was dis lessors , but , after many communications , bad tinguishable from Flureau V. Thornhill , 2 not been executed by Fothergill & Hankey . Wm . Bl. 1078. The other judges thought While matters were in this condition , Fother that it was not distinguishable . gill & Hankey made the agreement sued up on to transfer the royalty to Bain & Paterson , LORD CHELMSFORD . My lords , this and a deposit of £250 was paid . During the | appeal brings in review before your lordships negotiations, Mr. Fothergill , who was con the case of Flureau v. Thornhill , 2 Wm . Bl. ducting them , said nothing about the neces 1078 , and other cases which have engrafted sity of obtaining the lessors ' consent . The exceptions upon it ; and the first question to reason assigned by him for this omission be considered is whether that case was right was that, “ either it did not cross his mind , ly decided . The decision took place very or , if it did occur to him , he forbore to men - | nearly a century ago , in the year 1775 , and tion it, feeling sure that no difficulty would has been followed ever since ; not, however, arise with respect to such consent , and that without an occasional expression of doubt as it was therefore a matter of no importance .” I to its soundness . Should your lordships hap On application to the lessors for consent to pen to share in this doubt , you would be ex the transfer , they refused . Fothergill & Han tremely reluctant to disturb the rule which key made unsuccessful efforts to obtain the it laid down for the assessment of damages consent , and then offered to return the de- upon contracts for the sale of real estates , posit of £250 to Bain & Paterson , and treat and which has been so long acted upon , un the contract as at an end . Bain & Paterson less you were clearly convinced that it is refused to receive the deposit or treat the con erroneous and ought no longer to be main tract as terminated . Fothergill & Hankey , tained . with the consent of the lessors , sold the roy Now , the rule established by Flureau v. alty to a third person , and Bain & Paterson Thornbill, 2 Wm . Bl. 1078, is, that upon a then brought this action , in which they contract for the purchase of a real estate , if sought to recover the deposit , interest , and the vendor , without fraud , is incapable of expenses , and also damages for the loss of making a good title , the intended purchaser is their bargain . The defendants paid into not entitled to any compensation for the loss court a sum sufficient to cover the deposit , of his bargain . The case is very shortly re interest , and expenses . The trial court heldported . Lord Chief Justice De Grey merely that damages for the loss of the bargain laid down the rule , without giving any rea could not be recovered , and this was affirmed son for it . But Mr. Justice Blackstone said in the exchequer chamber . In the house of this : “ These contracts are merely upon con lords the judges were summoned , and Bar - dition frequently expressed , but always im ons Martin , Pigott , and Pollock and Justices plied , that the vendor has a good title . " Keating , Brett, and Denman attended . The The rule and the reason for it have been case was heard before Lords Chelmsford , adopted and followed in subsequent cases. Hatherley , and Colonsay , but the latter diedIn Walker v. Moore , 10 Barn . & C. 416 , where before judgment was delivered . 1 the plaintiff contracted with the defendant The Solicitor General (Sir G . Jessel) and for the purchase of a real estate ; the vendor , Mr. Herschell , Q. C ., for plaintiffs in error . acting bona fide, delivered an abstract shew ing good , plaintiff Mr. Manisty , Q. C., Mr. Holker , Q. C., and J . | a title and the . before he R . Mellor , for defendants in error . compared it with the original deeds, con tracted to sell several portions of the prop 1 The statement of facts has been condensed . | erty at a considerable profit. Upon an ex BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . amination of the abstract with the deeds it , in addition to those which have been pre was found that the title was defective . The viously assigned , it seems to me that the fol plaintiff refused to complete his purchase , lowing considerations may be suggested as and brought his action claiming , amongst in some degree supporting the correctness of other damages , the profit that would have ac the decision : " The fancied goodness of the crued to him from the re -sale of the proper bargain " must be a matter of a purely spec ty . It was held that he was not entitled to ułative character , and in most cases would these damages . Mr. Justice Parke said : “ A probably be very difficult to determine , in jury ought not, in the case of a vendor in consequence of the conflicting opinions like possession , to give any other damages in ly to be formed upon the subject ; and even consequence of a defect being found in the | if it could be proved to have been a benefi title , than those which were allowed in Flu - cial purchase , the loss of the pecuniary ad reau v. Thornhill, 2 Wm . Bl. 1078, which was vantage to be derived from a re - sale appears recognized in Johnson v. Johnson , 3 Bos. & to me to be a consequence too remote from P . 162, Bratt v. Ellis , Sugd . Vend . (11th Ed .) the breach of the contract. I am aware that Ap . No . 4, and Jones v. Dyke , Id . No . 5. In in Engel v. Fitch , 3 Q. B . 311; in error , 4 Q. the absence of any express stipulation about B . 659 , - where, after the contract , and be it, the parties must be considered as content fore the breach of it, the purchaser contract that the damages in the event of the title | ed for a re-sale at an advance of £105 , the proving defective shall be measured in the court of queen ' s bench and the court of ex ordinary way, and that excludes the claim of chequer chamber , though pressed with the damages on account of the supposed good decision in Hadley v. Baxendale , 9 Exch . ness of the bargain ." 311 , held that, " if an increase in value has The same learned judge recognized the au - taken place between the contract and the thority of Flureau v. Thornhill, 2 Wm . Bl. breach , such an increase may be taken to 1078 , in the case of Robinson v. Harman , 1 have been in the contemplation of the par Exch . 835 . He there said : “ The case of | ties within the meaning of that case ." But Flureau v. Thornhill , 2 Wm . Bl. 1078 , quali- it must be borne in mind that this question fied the rule of the common law that whereas to damages depends , as Baron Alderson a party sustains a loss by reason of a breach | said in Hadley v. Baxendale , 9 Exch . 341, of contract he is , so far as money can do it, upon what “may reasonably be supposed to to be placed in the same situation with re - have been in the contemplation of both par spect to damages as if the contract had been ties at the time they made the contract as performed .” Again , in Pounsett v. Fuller , | the probable result of the breach of it ." 17 C. B. 660 , the court , following the rule in Now , although the purchaser in Engel v . Flureau v. Thornhill, 2 Wm . Bl. 1078 , held | Fitch , 3 Q. B. 314 ; in error , 4 Q. B. 659 , that where a vendor failed to make a good when he entered into the contract, may have title pursuant to his contract , the purchaser contemplated a re - sale at an advance , it is in the absence of fraud or misrepresentation not at all likely that the loss of this profit on the part of the vendor ) was not entitled should have occurred to the vendor as the to damages for the loss of his bargain . Mr. | probable result of the breach of his contract . Justice Cresswell , in delivering his opinion , The judges were no doubt influenced by the said : “ We are not called upon here to in fact of the profitable re -sale having actually vestigate the grounds upon which the deci taken place , and were, in consequence , drawn sion in Flureau v. Thornhill , 2 Wm . Bl. 1078 , aside from considering what must have been proceeded , or to pronounce any opinion as to in the minds of both parties at the precise the wisdom or the expediency of the rule time when they made the contract . there laid down . It is enougil for us to say The decision in Flureau v. Thornhill , 2 that it has been received and acted upon In | Wm . Bl. 1078, derives great additional au too many subsequent cases to allow us now | thority from the opinion of Lord St. Leon to call it in question ." And in the recent ards, who , in his work on the Law of Ven case of Sikes y. Wild the court of. queen ' s dors and Purchasers ( 14th Ed ., p. 360 ), con bench ( 1 Best & S. 587 ) and the court of ex siders that it was rightly decided . chequer chamber (4 Best & S. 421 ) adopted The almost unanimous approval of the de the rule and acted upon it . cision in Flureau v. Thornhill , 2 Wm . Bl. In a more recent case of Engel v. Fitch , 3 | 1078 , was broken in upon by an expression Q. B . 314 ; in error , 4 Q. B . 659 , - to which I of disapprobation from Chief Justice Abbott sball presently have occasion more particu | in the case of Hopkins v. Grazebrook , 6 larly to refer , - Lord Chief Justice Cockburn , Barn . & C. 31, to which I have already al in an elaborate judgment, expressed his luded . He there said : “ Upon the present opinion that the case of Flureau v . Thorn occasion I will only say , that if it is advan bill , 2 Wm . Bl. 1078, was unsatisfactory , and ced as a general proposition that where a gave his sanction to Lord Chief Justice Ab vendor cannot make a good title the pur bott' s doubt as to the soundness of the de - | chaser shall recover nothing more than nom cision in that case. inal damages , I am by no means prepared to There is, perhaps , some difficulty in ascer - | assent to it . If it were necessary to decide taining the exact grounds of the judgment in that point I should desire to have time for Flureau v. Thornhill , 2 Wm . Bl. 1078 ; but, I consideration ." As the case of Hopkins v. 392 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

Grazebrook , 6 Barn . & C. 31 , was one which , 1 Baron Alderson and Baron Platt expressed according to the opinion of the court , was the same opinion . In Pounsett v. Fuller , 17 not within the operation of the rule in C . B . 660 , Hopkins v. Grazebrook , 6 Barn . & Flureau v. Thornhill , 2 Wm . Bl. 1078, there | C . 31, was treated as a valid authority by was no occasion for this passing reflection all the judges , the question which they con upon that case , which had been then silently sidered being whether the case fell within acqniesced in for fifty years . | Flureau v. Thornhill , 2 Wm . Bl. 1078 , or the In Hopkins v. Grazebrook , 6 Barn . & C. 31, 1 exception in Hopkins v. Grazebrook , 6 Barn . a person who had contracted for the pur - | & C . 31, and they decided that it was within chase of an estate , but had not obtained a the former case . conveyance , put up the estate for sale in But in the case of Engel v. Fitch the court lots by auction , and engaged to make a good of queen ' s bench (3 Q. B. 311), and after title by a certain day, which he was unable wards the exchequer chamber (4 Q. B . 639, to do , as his vendor never made a convey - | 601), proceeded expressly on the cases of ance to him , and it was held that a purchas- | Hopkins v. Grazebrook , 6 Barn . & C. 31, and er of certain lots at the auction might , in an | Robinson v. Harman , 1 Exch . 850 , the chief action for not making a good title , recover / baron quoting the very words of the lord not only the expenses which he had incurred , chief justice , and relying on those cases . In but also damages which he sustained by not that case the mortgagees of a house sold it having the contract carried into effect . Chief by auction to the plaintiff , the particulars of Justice Abbott said : “ The defendant had sale stating that possession would be given unfortunately put the estate up to auction on completion of the purchase . The pur before he got a conveyance . He should not chaser resold the house at an advance in the have taken such a step without ascertaining price to a person who wanted it for imme that he would be in a situation to offer some diate occupation . The mortgagor refused to title , and having entered into a contract to give up the possession . The mortgagee sell without the power to confer even the could have ousted him by ejectment , but re shadow of a title , I think he must be respon fused to do so on the ground of the expense . sible for the damage sustained by a breach The purchaser brought an action upon the of his contract ." And Justice Bayley said : | contract of sale , and it was held , that as " The case of Flureau v. Thornhill , 2 Wm . Bi. the breach of contract arose not from ina 1078 , is very different from this , for here the bility of the defendants to make a good ti vendor had nothing but an equitable title .” 1 tle , but from their refusal to take the nec The decision itself in Hopkins v. Graze - essary steps to give the plaintiff possession brook , 6 Barn . & C. 31, cannot be supported . | pursuant to the contract , he could recover The seller in that case had undoubtedly annot only the deposit and the expenses of in equitable estate in respect of which he had vestigating the title , but damages for the a right to contract . Therefore the language loss of his bargain ; and that the measure of of Chief Justice Abbott , that “ the defendant such damages was the profit which it was had entered into a contract to sell without shewn he would have made upon a re -sale . the power to confer even the shadow of a It was after this decision in Engel v. Fitch title ," is not warranted by the circumstances , that the plaintiffs in error declined to argue of the case, as the defendant could certainly the present case in the exchequer chamber , have assigned his equitable estate ; and thus as the authorities on the subject could only the sole ground upon which he held him re be freely reviewed by a higher tribunal . sponsible for damages entirely failed . But The case therefore comes to your lordships ' although the facts in Hopkins v. Grazebrook , house without the advantage of the opinions 6 Barn . & C. 31, did not justify the decision , of the learned judges of that court. yet the case has always been treated as hav Notwithstanding the repeated recognition ing introduced an exception to the rule in of the authority of Hopkins v. Grazebrook , Flureau v. Thornhill , 2 Wm . Bl. 1078 , and as | 6 Barn . & C. 31 , I cannot , after careful con , having withdrawn from its operation a class | sideration acquiesce in the propriety of that , , , of cases where a person knowing that he decision . I speak of course of the excep , has no title to real estate enters into a con - ! tion which it introduced to the rule estab , tract for the sale of it . It is not correct to lished by Flureau v . Thornhill 2 Wm . Bl .

say , . in | with Lord St Leonards his Vendors 1078 with respect to damages upon the , p ( . of a . ) of and Purchasers 14th Ed 339 that Hop breach contract for the sale a real , , , v . 6 . & C . 31 kins Grazebrook Barn has not estate for as to the case itself not falling . It been followed has been recognized in within the exception to the rule ( if any such , , in to I several cases since and one which exists ) I suppose no doubt can now be en presently it shall refer has been expressly tertained . The exception which the court , , , . In v . 1 . | in v . 6 followed Robinson Harman Exch Hopkins Grazebrook Barn . & C . 31 , 8 . 30 already as having engrafted upon in mentioned sanctioned the rule Flureau v . Thorn , , , in v . 2 . the decision Flureau Thornbill Wm hill 2 Wm . Bl . 1078 has always been taken , . : " to be present : in an Bl 1078 Baron Parke said The this that action for breach of of case comes within the rule the common a contract for the sale of a real estate if , I

distinguish it - law and cannot from Hop the vendor at the time of entering into the , , v . " 6 . & C . 31 kins Grazebrook Barn . And I contract knew that he had no title the pur BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 393 chaser has a right to recover damages for , bar , I should have treated as beyond doubt ." the loss of his bargain . Upon a review of all the decisions on the In Sedg . Dam . (4th Ed .) p. 234 , mention - | subject , I think that the case of Hopkins ed by Mr. Baron Martin , in his judgment v. Grazebrook , 6 Barn . & C. 31 , ought not in this case, after a reference to the gen any longer to be regarded as an authority . eral rule as to damages , it is said : “ To this Entertaining this opinion , I can have no general rule there undoubtedly exists an doubt that the judgment of the court of ex important exception which has been intro chequer in the present case is right, wheth duced from the civil law in regard to dam er it falls within the rule as established by ages recoverable against a vendor of real Flureau v. Thornhill, 2 Wm . Bl. 1078, or is estate who fails to perform and complete to be considered as involving circumstances the title . In these cases the line has been which have been regarded as removing cases repeatedly drawn between parties acting in from the influence of that rule ; because I good faith and failing to perform because think the rule as to the limits within which they could not make a title , and parties damages may be recovered upon the breach whose conduct is tainted with fraud and of a contract for the sale of a real estate bad faith . In the former case , the plaintiff must be taken to be without exception . If can only recover whatever money has been | a person enters into a contract for the sale paid by him with interest and expenses . In of a real estate knowing that he has no the latter , he is entitled to damages for the title to it , nor any means of acquiring it, loss of his bargain . The exception cannot , the purchaser cannot recover damages be I think , be justified or explained on prin - yond the expenses he has incurred by an ciple , but it is well settled in practice ." I action for the breach of the contract ; he quite agree that the distinction as to dam can only obtain other damages by an action ages in cases of contracts for the sale of for deceit . real estate , where the vendor acts bona It is only necessary to add that, in my fide, and where his conduct is tainted with opinion , if there were any exceptional cases fraud or bad faith , is not to be “ justified or from the rule in Flureau v. Thornhill, 2 Wm . explained on principle .” Bi. 1078 , the present case would not fall 1 fully agree in the doubt expressed by within any of them , but is within the rule Mr. Justice Blackburn , in Sikes v. Wild , 1 | itself. The respondents , when they entered Best & S. 594 , as to the soundness of the into the contract for the sale of Miss Wal exception in Hopkins v. Grazebrook , 6 Barn . ter 's royalty , had an equitable title to the & C . 31 , and in the observations which fol mine which they might have perfected by low the expression of that doubt . The learn obtaining the lessors ' consent to the assign ed judge said : " I do not see how the ex ment to them . This consent had not been ob istence of misconduct can alter the rule by tained at the time the contract was entered which damages for the breach of a contract into , and the fact was not communicated to are to be assessed . It may render the con the intended purchaser . The reason for this tract voidable on the ground of fraud , or non -communication is stated in the case to give a cause of action for deceit , but sure be, that " either it did not cross the mind ly it cannot alter the effect of the contract of the respondent Fothergill , or, if it did itself . And if it be said that the rule de occur to him he forbore to mention it, feel pends upon an implied condition resulting ing sure that no difficulty would arise with from the general understanding of vendors respect to such consent , and that it was and purchasers (which is the ground taken therefore a matter of no importance .” by Mr. Justice Parke in Walker v. Moore , There is no reason to think that the respond 10 Barn . & C. 416 , and I think the true ents were not acting throughout under a one ), and that the usage is such that this bona fide belief that the lessors ' consent implied condition excludes such cases as right be obtained at any time upon applica Hopkins T . Grazebrook , 6 Barn . & C. 31 , I tion . They were prevented performing think that it will be worthy of the consid their contract , not from any fraud or wilful eration of any court competent to review act on their part, but by an unexpected de that case whether the strong opinion of fect in their title which it was beyond their Lord St . Leonards, repeated in the 13th edi power to cure . tion of Vendors and Purchasers , does not The case falls precisely within the terms shew that the " general understanding of of the rule as stated in Flureau v. Thorn conveyancers has been misapprehended ." In hill, 2 Wm . Bl. 1078 ; and therefore , in my the 14th edition of his work , pages 360 , 361, opinion , the judgment appealed from is right Lord St. Leonards quotes the whole of the and ought to be affirmed . above passage from Mr. Justice Blackburn 's Lord HATHERLEY delivered a concur judgment , and adds , “ This seems to be the ring opinion . true rule , it is a point which whilst at the Judgment of the court below affirmed . 394 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

. The for HOPKINS v. LEE. | and the evidence admitted counsel the plaintiff in error then prayed the court , 109 . ) (6 Wheat. to instruct the jury that in the assessment

, they price of damages should take the of the . . Supreme Court of the United States Feb military lands as agreed upon by the parties ,

Term 1821 .

in the articles of agreement upon which the , Error to the circuit court for the District action was brought as the measure of dani . of of Columbia . ages for the breach covenant But the , , by

of brought give This was an action covenant court refused to this instruction and , , the defendant in error Lee against the plain - directed the jury to take the price of the , , damages , to tiff in error Hopkins recover for lands at the time they ought to have been , ,

of military not conveying certain tracts lands conveyed as the measure of damages . To ; which the plaintiff in error had agreed to con - this instruction the plaintiff in error excepted , relieving a in vey upon the defendant error and a verdict and judgment thereon being , certain incumbrance held by one Rawleigh rendered for the plaintiff below the cause , , upon Colston an estate called Hill and Dale was brought by writ of error to this court . and which Lee had previously granted and ,

Pinkney & plaintiff in .

, military Swann for error sold to Hopkins and for which the , Jones & Lee for defendant in error .

in part to lands in question were be received

payment . The declaration set forth the cove

, completely , question nant and averred that Lee had LIVINGSTON J . The first whicb ,

. pro is removed the incumbrance from Hill and Dale this court has to consider whether the

pleaded : ( 1 ) properly The defendant below That he ceedings in chancery were admitted ; had not completely removed the incumbrance | in evidence in the court below . , , and ( 2 ) that he the( defendant below ) had ! It is not denied as a general rule that a de never been required by Lee to convey the fact which has been directly tried and , ; is

on pleas of competent jurisdiction military lands to him and these cided by a court , , in or sues were joined . Upon the trial Lee cannot be contested again between the same , in prove question parties in or any . der to the incumbrance was the same other court , , removed offered in evidence to the jury a Hence a verdict and judgment of a court of , , record of the proceeding in chancery on a record or a decree in chancery although not , by , to

in puts bill filed against him the circuit court binding on strangers an end all fur

Hopkins . The bill stated that on the 23dther controversy concerning the points thus , , of January 1807 the date of the agreement decided between the parties to such suit . In at present is ought to be on which the action law was this there and no difference be , of brought Hopkins purchased Lee the estate tween a verdict and judgment in a court of ,

a of a of equity . of Hill and Dale for which he agreed to pay common law and decree court , , , , , , $ 18 000 namely $ 10 000 in military lands at They both stand on the same footing and , settled prices and to give his bond for the may be offered in evidence under the same , , , ; residue payable in April 1809 . That Lee in limitations and it would be difficult to as , pursuance of this agreement selected certain sign a reason why it should be otherwise .

military lands in the bill mentioned . That at the rule has found its way into every sys , , the time of the purchase of Hill and Dale it tem of jurisprudence not only from its obvi , ,

a large was mortgaged to Colston for sum ous fitness and propriety but because with , , which Lee had promised to discharge but out it an end could never be put to litigation , , , , had failed so to do in consequence of which | It is therefore not confined in England or , Hopkins had paid off the mortgage himself . in this country to judgments of the same , The bill then claimed a large sum of money court or to the decisions of courts of con , , from Lee for having removed this incum current jurisdiction but extends to matters , brance and prayed that the defendant might litigated before competent tribunals in for ,

eign . It applies to of be decreed to pay it or in default thereof that countries sentences , , , the claimant might be authorized by a de - courts of admiraniy to ecclesiastical tribunals , , , , cree of chancery to sell the military lands and in short to every court which has prop , which he considered as a pledge remaining in er cognizance of the subject matter- so far as , his hands and out of the proceeds thereof they profess to decide the particular matter , in .

in of ' s in dispute . coming to pay himself On the Lee Under this rule the decree , , , answer denying several of the allegations of this case was proper evidence if it decided or , , , the bill the cause was referred to a master professed to decide the same question which , who made a report stating a balance of was made on the trial at law . For to points , $ 427 . 77 due from Hopkins to Lee . This re which came only collateraly under consid , , ,

or only incidentally cog port was not excepted to and the court after eration were under , , referring to it proceeded to decree the pay nizance or could only be inferred by arguing , it is ment of the balance . To this testimony the from the decree admitted that the rule ,

apply . a to defendant in the present action objected so does not On reference the pro , far as respected the reading of the master ' s ceedings at law and in chancery in the case , ; , report and the decretal order thereon but the now before us the court is satisfied that the , of objection was overruled by the court below 1 question which arose on the trial the ac BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 395

tion of covenant , was precisely the same , if | The court entertains a different opinion . No not exclusively so, (although that was not reason has been assigned why a decision by a necessary ,) as the one which had already been proper and sworn officer of a court of chan directly decided by the court of chancery . cery , in the presence and hearing of both The bill, which was filed by the present plain parties , according to the acknowledged prac tiff in error , states that on the 23d of Jan tice and usage of the court on the very mat uary , 1807, which is the date of the agree ters in controversy , not excepted to by either ment on which the action at law is brought, party and confirmed by the court , should not Hopkins purchased of Lee the estate of Hill be as satisfactory evidence of any fact found and Dale , for which he was to pay $18 ,000 ; by it , as the verdict of a jury on which a that is , $ 10, 000 in military lands , at settled judgment is afterwards rendered . The ad prices , and the remainder in bonds , payable vantage which a verdict may be supposed to

in April , 1809. That Lee , in pursuance of possess over a report , from its being the de , this agreement selected certain military lands cision of twelve instead of the opinion of a , in . of the bill mentioned That at the time single man is perhaps more than counterbal , the purchase of Hill and Dale it was mort anced by the time which is allowed to a mas ,

gaged to a large Rawleigh Colston for sum ter for deliberation and a more thorough inves , which Lee had promised to discharge but tigation of the matters in controversy . But a , , so to in consequence of satisfactory that he had failed do better and more answer is that it , , which Hopkins had paid the mortgage himself . | is the usual known and approved practice of

complainant a large The then claims sum from the court to whose jurisdiction the parties had , , Lee for having removed this incumbrance submitted themselves . But if this document , and prays that the defendant may be decreed be withheld from a jury how are they or the ,

to pay it or in default thereof that the com court to arrive at the grounds of the decree ,

plainant may by a of be authorized decree the or a knowledge of the points or matters which , , , court to sell the military lands which he con - have been decided in the cause ? Without it , ; as

a pledge in of sidered his hands and out the decree may be intelligible but the ,

proceeds to pay . a single the himself Not de grounds on which it proceeds or the facts , ,

is in except it to may mand stated the bill the one aris which means decide be liable to

ing out of the complainant ' s extinguishment much uncertainty and conjecture . The re , , , of the incumbrance which Lee had taken port therefore as well as the decree was

proper , only upon himself to remove . evidence not of the fact that , , On Lee ' s answer coming in denying several such report and decree had been made but of ,

they professed directly to of the allegations of the bill the cause is the matter which , , referred to a master commissioner who after decide . We are not now called upon to say , , , a long investigation in the presence of both whether in those respects they were conclu , , parties and the examination of many wit sive as they do not appear to have been of ; , meaning nesses makes a report by which Hopkins is fered with that view but without , , a of in of $ . 77 . made debtor Lee the sum 427 to deny to them such effect we only say , , is On inspection of this report it will be seen which all that the present case requires , that the chief if not the only controversy be that they were competent and proper in the , , tween the parties was whether Hill and Dale absence of other testimony to establish the | had been relieved from its incumbrance to fact of the removal of the incumbrance by the , , Colston by funds furnished by Lee to Hop defendant Lee from the estate of Hill and , , kins for that purpose and that unless that Dale . , , fact had been found affirmatively a report In the assessment of damages the counsel

could not have been made in Lee ' s favor . for the plaintiff in error prayed the court to , , The court after referring to this report and instruct the jury that they should take the , , stating that it had not been excepted to pro price of the land as agreed upon by the par

ceeds to decree the payment of this balance ties in the articles of agreement upon which , by the complainant to the defendant . From the suit was brought for their government . , in this summary review of the proceedings But the court refused to give this instruction , chancery the conclusion seems inevitable and directed the jury to take the price of , that the chief if not sole matter in litigation the lands at the time they ought to have , , in that suit was whether Hill and Dale had been conveyed as the measure of damages . ,

to by been freed of the incumbrance Colston To this instruction the plaintiff in error ex , , Lee or by Hopkins and that the report and cepted . The rule is settled in this court that

subsequent decree proceeded on the ground in an action by the vendee for a breach of , , and established the fact that Lee had dis contract on the part of the vendor for not , , charged it which was also the only point delivering the article the measure of dam , put in issue by the first plea of the defendant | ages is its price at the time of the breach . , by in the action of covenant . No rule of evi - | The price being settled the contract which , , , , is in dence therefore violated saying that is generally the case makes no difference nor ; , this decree was properly admitted by the cir - ought it to make any otherwise the vendor , , cuit court . But if the decree were admissible if the article have risen in value would al

it is supposed that the report of the master ways have it in his power to discharge him , ought not to have been submitted to the jury . | self from his contract and put the enhanced 396 BREACH OF CONTRACTS RESPECTING REAL ESTATE . value in his own pocket . Nor can it make for at the contract price , and to sell it himself any difference in principle whether the con - at its increased value . If it be withheld , the tract be for the sale of real or personal prop vendor ought to make good to him the differ erty , if the lands , as is the case here , have ence . This is not an action for eviction , nor not been improved or built on. In both cases is the court now prescribing the proper rule of the vendee is entitled to have the thing agreed l damages in such a case . Judgment affirmed . BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 397

PUMPELLY V. PHELPS. and yet this is an arbitrary rule , and works great injustice many times ; and the courts (40 N. Y. 64.) met with the greatest embarrassment in set Court of Appeals of New York . March , 1869 . tling it. These difficulties were considered , expressed , leading Action for specific performance of a con and well in the case in , Eyck , tract to convey land , or in the alternative, this state of Staats v. Ten 's Ex’rs 3 damages for the breach . The plaintiff had | Caines , 115, in which the court said : “ To damages , , judgment below for damages , and defend find a rule of in a case like this is difficulty ; entirely ant appeals . a work of none will be free from objection , or will not, at times , Phelps was trustee of lands for Mrs . Van work injustice . Rezsselaer , with power to sell upon her writ " To refund the consideration , even with the ten assent . Very soon after his appointment interest , may be a very inadequate compen she told him he need not consult with her sation , when the property is greatly enhan . about the sale of any of the lands, but to con ced in value, and when the money might fer with her husband , and to whatever they have been laid out to equal advantage else should agree upon , she would consent . In where . Yet to make this increased value the reliance upon this arrangement, Phelps sold criterion , where there has been no fraud, many parcels , to which sales Mrs. Van Rens may also be attended with injustice , if not gelaer always gave the necessary assent . In ruin . the same way , Phelps , with the husband 's as " A piece of land is bought solely for the sent, agreed to sell the lands in controversy purpose of agriculture , and by some unfore to Mrs . Brinckerhoff , supposing that Mrs . seen turn of fortune, it becomes the site of Van Rensselaer would consent as usual. a populous city ; after which an eviction The latter , however , for purely personal rea . takes place . Every one must perceive the sons , refused to assent , though she did sub injustice of calling on a bona fide rendor to sequently consent to a sale of the lands to a refund its value , and that few fortunes could third person for a larger sum . Mrs. Brinck . bear the demand . Who for the sake of one erhoff made a part payment at the time of hundred pounds would assume the hazard making the contract . At the commencement of repaying as many thousands , to which of this action , defendant offered to return value the property might rise, by causes this sum with costs . Plaintiff died pending unforeseen by either party , and which in the action , and her executors were substi crease in worth would confer no right on the tuted . The contract ran , “ I agree to sell and grantor to demand a further sum of the convey , " etc ., and was signed , " Philip Phelps , grantee ?” There is still another class of ,” but did not state for whom he was Trustee simply refunding trustee . Mrs . Brinckerhoff was ignorant of cases where the rule of the purchase -money and the interest oper any defect in her title , 1 ates with great hardship and injustice upon John H. Reynolds, for appellant. Samuel the purchaser . A . purchases of B . a city lot , Hand for respondents . for the purpose of building himself a dwell ing or buildings upon it, and takes from B. MASON , J . There has never seemed to a full covenant deed of the premises , cove me to have been any very good foundation nanting to assure , warrant and defend the for the rule , which excused a party from the title. The buildings are constructed at the performance of his contract , to sell and con : cost of thousands of dollars , and then B. is vey lands, because he had not the title which evicted by a paramount title ascertained to be had agreed to convey . There seems to be in some one else . The recovery of the have been considerable diversity of opinion money and six years ' interest is not a very in the courts as to the grounds upon which just or reasonable return in damages for the the rule itself is based . law to give to one who holds a covenant to In England, the rule seems to have been make good and defend the title . sustained upon the ground of an implied The reasons assigned for this rule in ac understanding of the parties, that the parties tions for a breach of covenant of warranty must have contemplated the difficulties at of title can scarcely apply to these prelimi tendant upon the conveyance . In the lead rary contracts to sell and convey title at a ing case on this subject , of Flureau v. Thorn future time. In the latter case the vendee hill, 2 W . Bl. 1078, Blackstone , J ., said : knows he has not got the title , and that per " These contracts are merely upon condition , haps he may never get it ; and if he will go frequently expressed , but always implied , | on and make expenditures under such cir that the vendor has a good title ." cumstances it is his own fault ; and besides , While in this country the rule is based up these preliminary contracts to convey gen on the analogy between this class of cases erally have but a short time to run, and and actions for breach of covenant of war there is seldom any such opportunity for the ranty of title . Baldwin v. Munn , 2 Wend . growth of towns, or a large increase in the 399 ; Peters v. McKeon , 4 Denio , 546 . The value of the property as there is in these rule of damages , in an action for a breach covenants in deeds , which run with the land of covenant of warranty of title , is settled to through all time . be the consideration paid , and the interest ; | The supreme court of the United States i Statement of facts condensed . 398 BREACH OF CONTRACTS RESPECTING REAL ESTATE . has refused to yield its sanction to this Junn , 2 Wend . 399 ; Peters V. McKeon , 4 rule when applied to contracts for the sale Denio , 546 ; Conger v. Weaver , 20 N . Y. 140 . of lands , and affirms the doctrine that the The rule is otherwise however where a par . reason of the rule as to contracts for the sale ty contracts to sell lands which he knows at goods of and chattels applies with equal the time he has not the power to sell and force to these executory contracts for the convey ; and if he violates his contract in sale of lands. Hopkins v. Lee , 6 Wheat . 109. the latter case , he should be held to make That rule is where a party sustains a loss by good to the vendee the loss of his bargain , reason of a breach of contract , he is, so far and it does not excuse the vendor , that he as money can do it, to be placed in the same may have acted in good faith and believed , situation with respect to damages as if the when he entered into the contract , that he contract had been performed . Robinson v. should be able to procure a good title for his Harman , 1 Exch . 850 . This case of Hopkins purchaser . 2 Pars . Cont. 503 , 504, 505 ; Hop v. Lee , 6 Wheat . 109, is cited with approba kins v. Grazebrook , 6 Barn . & C. 31 ; Driggs tion in some of the American cases , and the v. Dwight , 17 Wend . 74 ; Bush v. Cole , 28 N. rule there laid down affirmed . Y. 261 ; Lock v. Furze , L . R . 1 C. P . 441 ; These views are not presented to induce Robinson v. Harman , 1 Exch . 819 ; Hill v . the court to overrule or repudiate the ad - | Hobart , 16 Me. 164 ; Fletcher V. Button , 6 judged cases in our own courts upon this Barb . 650 ; Trull v. Granger , 8 N. Y. 115 ; subject. They reach back over a period of Hopkins v. Lee , 6 Wheat. 109 ; Burwell v. more than forty years , and have been too Jackson , 9 N. Y . 535 ; White v. Madison , 26 long sanctioned to be now repudiated . N . Y. 124 ; Lewis v. Lee , 15 Ind . 499 ; Dean I have referred to this matter simply as v. Raseler, 1 Hilt. 420 ; Bitner v . Brough , 11 furnishing an argument against in any de Pa. St. 127 ; McNair v. Crompton , 35 Pa . St. gree extending the rule , and as a reason for 23 ; Wilson v. Spencer , 11 Leigh , 261 ; Gra limiting it strictly where the already ad. | ham v. Hackwith , 1 A. K . Marsh . 429 ; Dart , judged cases in our own courts have placed Vendors, 447 . This rule , applied to the case it. It becomes important in this connection at bar, sustains the judgment of the supreme to inquire what that limit is . The general | court . rule certainly is that where the vendor has The defendant must be held personally lia the title and for any reason refuses to con . ble on this contract . It is essentially bis vey it, as required by the contract , he shall contract . In order to exempt the contract . respond in law for the damages in which he ing party from personal liability , he must so shall make good to the plaintiff , whom he contract as to bind those he claims to repre has lost by his bargain not being lived up to . sent. Moss V. Livingston , 4 N. Y . 208 ; De This gives the vendee the difference between witt v. Walton , 9 N. Y . 571; Bay v. Gunn, 1 the contract price and the value at the time Denio , 108 ; Bush v. Cole , supra . of the breach , as profits or advantages which The fact that the party describes himself are the direct and immediate fruits of the as trustee , without stating for whom , does contract . Griffin V. Colver , 16 N. Y. 489 ; not relieve him from personal liability , or Durkee v. Mott, 8 Barb . 423 ; Underhill v. change the effect of bis engagement . Taft Gas-light Co ., 31 How . 37 ; Masterson V. v. Brewster , 9 Johns . 334 ; White v. Skinner , Mayor , etc ., of Brooklyn , 7 Hill, 61, 69. 13 Johns . 307 ; Dewitt v. Walton , supra ; Where however the vendor contracts to sell Bush v. Cole , supra . These views lead to the and convey in good faith , believing he has affirmance of the judgment. good title , and afterward discovers his title is defective , and for that reason without any GROVER , WOODRUFF , JAMES , and fraud on his part, refuses to fulfill his con MURRAY, JJ., concurred with MASON , J., tract, he is only liable to nominal damages and were for affirmance . DANIELS, J., dis for a breach of his contract . Baldwin v. 1 sents . BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 399

MARGRAF v. MUIR . specifically enforce it. But they will not de . cree specific performance in cases of fraud (57 N . Y. 155.) or mistake , or of hard and unconscionable Commission of Appeals of New York. Jan . ' bargains, or when the decree would produce , Term 1874 . injustice , or when such a decree would be Appeal from order of the general term of ' inequitable under all the circumstances . 2 ; Eq ; the supreme court in the Second judicial de- Story , Eq . Jur. $ 769 Will . . Jur. 262 , partment, reversing a judgment in favor of Osgood v. Franklin , 2 Johns. Ch . 1 14 Johns. plaintiff , entered upon the report of a ref - ! 527 ; Seymour v. Delancy , 6 Johns . Ch . 222 , eree and granting a new trial. 3 Cow . 531. equity This action was against the vendor for spe - , Formerly , in case courts of refused ground cific performance of a contract to convey a specific performance on the of mere lot of land , situate in Westchester county , inadequacy of consideration , the party claim and for damages for breach of the contracting performance still had his remedy by a in case it could not be specifically performed . ! new action in the courts of law for damages The defendant is the widow of Alexander for the breach of contract , and in such courts Muir , who died intestate in 1838 , seized of a mere inadequacy of consideration , not so lot of land in Westchester county . He left great as to be evidence of fraud, was never six children , three of whom were yet minors , a defense . Hence if this action had been brought when the contract in question was made . before the Code in the court of chan The defendant, with her children , resided in cery, the equity of the bill being denied , ju Brooklyn , and the plaintiff resided in West risdiction of the action would not have been chester county , near the lot in question . She retained to award such damages for a breach did not know what the lot was worth , but of the contract as could be recovered in a plaintiff he knew it was worth $2,000 in consequence court of law . But the would have of its recent rise in value . This knowledge been obliged to commence a new action at he concealed from the defendant and con law to recover his damages . This practice tracted with her to purchase it for $800 . She has however been changed by the Code ; anu , equitable legal jurisdiction being contracted in her own name, expecting that now and those of her children who were of age would united in the same court , a party can unite complaint legal equita unite with her in the conveyance , and that in the same both and she could get from the court the right to con ble causes of action arising out of the same vey on behalf of her minor children . Before transaction . Code, § 167. I suppose it is the making of the contract , the lot had been perfectly competent for a party to set forth complaint specific sold for taxes , and a lease thereof given in in his a cause of action for performance pursuance of such sale . At the time of mak of a contract to convey land , damages ing the contract , the plaintiff knew that the and also a cause of action for for lot belonged to defendant 's children , and that breach of the contract , in case for any reason proceedings would have to be taken in some it cannot be performed . If upon the trial, it any equitable court to give her the right to convey ; and turns out that for reason the granted , plaintiff he also knew that the land had been sold for relief cannot be the can taxes , and this latter fact she did not know . yet recover his damages if he is entitled to any , ; Bradley The referee found that the lot was worth . Barlow v. Scott 24 N . Y. 40 , $ 2,000 , and ordered judgment for the plain v. Aldrich 40 N . Y. 504 ; Pumpelly v. Phelps , tiff for $1,200 , the difference between the con Id . 59. tract price and the value of the lot. Fur In this case the referee denied the equita , damages ther facts appear in the opinion . ble relief but awarded for the breach of the contract , and in this he did not John Flanders, for appellant . Samuel J . err , provided he adopted the proper rule of Glassey , respondent . for damage . The referee allowed the plaintiff as damages the difference between the con EARL , C. This was an unconscionable tract-price and the value of the land , thus contract and could not be specifically enforced placing him in the position he would have on the ground of the inadequacy of the con been if the contract had been performed . sideration . The plaintiff lived near the lot In this I think he erred . The general rule in and knew its value . The defendant lived at this state , in the case of executory contracts a distance and did not know its value . While | for the sale of land , is that in the case of the plaintiff did not make any misrepresenta breach by the vendor , the vendee can recover tions , he concealed his knowledge of the re only nominal damages , unless he has paid cent rise in value of the lot and took advan part of the purchase -money , in which case he tage of her ignorance , and thus got from her can also recover such purchase -money and a contract to convey to him the lot for but a interest . Mack v. Patchin , 42 N . Y. 167; little more than one -third of its value . Such Bush V. Cole , 28 N . Y. 261 ; Pumpelly V. a contract , it is believed , has never yet been Phelps , supra . See , also , Lock v. Furze, L . enforced in a court of equity in this country . R . 1 C. P . 441; Engle v. Fitch , L . R . 3 Q. When a contract for the sale of lands is fair B. 314. But to this rule there are some ex and just and free from legal objection , it is | ceptions based upon the wrongful conduct of a matter of course for courts of equity to the vendor , as if he is guilty of fraud or can ESTATE . 400 BREACH OF CONTRACTS RESPECTING REAL

convey , but will not either from perverseness , he made the contract that he had no title , , believing or to secure a better bargain , or if he has although he acted in good faith covenanted to convey when he knew he had that he could procure and give the purchaser no authority to contract to convey ; or where a good title , he was yet liable for the differ it is in his power to remedy a defect in his ence between the contract -price and the val title and he refuses or neglects to do so, or 1 ue of the land . But there are two features when he refuses to incur such reasonable ex - which distinguish this case from that. In penses as would enable him to fulfill his con that case , the vendee did not know that the tract . In all such cases, the vendor is liable vendor had no title . Here, he did know it, to the vendee for the loss of the bargain , un - , and he knew also that she could get no title der rules analogous to those applied in the without imposing upon some court . Here al sale of personal property . Here no fraud so, even if she could have procured the au was perpetrated on the vendee. He knew thority of some court to convey , she still that the vendor did not have title to the would have been unable to give such a title lands , and that she could not convey to him as her contract called for , on account of the without authority from some court ; and he | outstanding tax title which was unknown to knowing that the land was worth $ 2,000 , | her when she contracted and which she could may be presumed to have known that no au - not procure . thority could be obtained to convey the land . The plaintiff agreed , subsequently , to the for $800 , without in some way practicing an making of the contract , if defendant would imposition upon the court . This latter knowl abate $ 100 from the contract -price , that he edge she did not have . Believing , as she did , would , at his expense , conduct the proceed . that $800 was a fair price for the land , she ings to procure from the court authority to had no reason to doubt that she could ob convey, she co -operating with him and would tain authority to convey . Further than this , take a conveyance subject to the tax title . he knew that the land had been sold for taxes This did not alter the position of the parties and a lease given . This she did not know . so as to affect this case . She was in no sense Under these circumstances , she could not get culpable in not co -operating with him in im authority from the court to make a convey posing upon some court , and to shield her ance upon behalf of her minor children , and from the damages claimed in this case, she it appears that she could not procure the tax was not obliged to allow him any thing on title . Hence , there is no ground for imput account of the tax title . I am therefore of ing to her any blame for not making such a opinion that the referee erred in the rule of conveyance as her contract called for . These damages applied . The recovery should have facts do not call for the application of an ex been confined to the purchase -money paid ceptional rule of damages in this case . ( $25) and the interest thereon . The case of Pumpelly v. Phelps , supra , is The general terin did not therefore err in the widest departure from the general rule reversing the judgment , and its order should of damages in such case that is to be found be affirmed and judgment absolute ordered in the books . In that case it was held , that against the plaintiff , with costs . y where the vendor , in an executory contractcontractAll concur . for the conveyance of land , knew at the time ! Order affirmed and judgment accordingly . BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 401

by necessary implication , HAMMOND v. HANNΊΝ. | to think that the authority of the agent of the vendee is to be , Rep .) (21 Mich . 374 4 Am . . 490 evidenced in the same manner. Browne , St. Frauds , 8 203 . It was not essential, Supreme Court of Michigan . Oct . Term , 1870. | however , that the contract should be under Error to circuit court, Van Buren county . seal, and an oral ratification of it after wards was sufficient. Maclean v. Dunn , 4 M . J. Smiley , for plain Newton Foster and Bing. 722 ; Hunter v. Parker , 7 Mees . & W . Stephenson and H . F . tiff in error. T. H . 322; Worrall v. Munn , 5 N. Y . 229 ; Bank r . , in error . Severens for defendant Guttschlick , 14 Pet . 29. The subsequent ratification was so abundantly proved in the COOLEY , J. The material facts in this present case that I am inclined to treat this case are as follows : On September 10, 1864 , į error of the court - if such it was - as im Hammond contracted to sell to Hannin an i material . The subsequent payment by the · eighty acre lot in the county of Van Buren plaintiff of nearly all the purchase price , for the sum of five hundred dollars , of which and her contracts for the sale of portions one hundred and twenty dollars were to be of the land , were undisputed , and were paid down , and the balance in subsequent such unequivocal acts of ratification as to installments . The contract was in writing , put that fact beyond controversy . We and was signed and sealed on behalf of ought not , I think , to reverse a judgment Hannin , by Bartly Hannin , her husband , for an error which could not possibly have who had oral authority for the purpose . | been productive of injury . Hannin took possession and cut and sold The second error complained of is that off considerable timber , paid taxes for two the plaintiff was allowed to prove by parol years , and gave contracts to two persons for that she had paid certain taxes upon the the sale to them of different parcels of the premises , against the objection of the de premises. fendant, that the receipts for these pay The legal title to the land appears to ments were the better evidence . We think , have been , at the time the contract was however , that the fact of payment of money entered into , in one John M . Gordon , ani may always be proved by parol , whether a insane person , of whom one Mickle was receipt was taken for it at the time or not. committee . T . W . Mizner , Esq ., of Detroit , 1 It is true it has been held that if a receipt was acting as agent for Mickle , and as such is given it is an official document which sold the lands to Hammond , who appears may be used as primary evidence ( John to have purchased in good faith , and in the stone v. Scott , 11 Mich . 232) ; but this does belief that he was to obtain a good title . not preclude other proof. On the contrary , The conveyance , however , was not yet made. the receipt itself , if put in evidence , would Hannin paid Hammond the whole amount of be open to contradiction or explanation by the purcbase money agreed to be paid by | the evidence of persons having personal her , except one hundred and three dollars , knowledge of the facts ; and the parol evi and on September 14, 1866, tendered pay | deuce can therefore in no sense be regarded ment of this sum and demanded title ; but as secondary . The receipt , if proved , might Hammond having at that time discovered save the necessity for calling witnesses , that Mickle had no authority , as committee , but it could not render them incompetent . to make sale of lands in Michigan , declined An objection which was taken to evidence to execute a deed on this ground , and Han - by the plaintiff to show sales of the land nin then brought action against him to re made by herself , is equally untenable . The cover damages for breach of his contract court received this evidence for the sole pur to convey . pose of showing a ratification by the plain The main question which has been dis tiff of the purchase made in her name by cussed upon this record regards the proper her husband . For this purpose it was un measure of damages , but there are some | objectionable . questions of ininor importance which may Another objection was taken to a ruling properly be considered first . The defend by the court excluding evidence of a deed ant objected to oral proofs of the authority given upon an auction sale of the same by the plaintiff to her husband to sign the lands made afterwards by the guardian of contract on her behalf , but the objection the owner under an order of the probate was overruled . If this evidence had been court . The evidence was offered in order all that appeared to connect the plaintiff to show that the value of the land , as with the contract , I should not be satisfied determined by the public sale , was much less of the correctness of this ruling. Our statute than that testified to by the plaintiff 's wit of frauds requires the authority of the nesses , but it appears that the defendant agent acting for another in the sale of lands was aferwards allowed to put in evidence to be in writing (Comp . Law 's , $ 3180 ) ; and the files and records of the probate court to though perhaps a strict construction of the show the same facts proposed to be showth section would confine its operation to the by the guardian's deed , and the error , if any, agent of the vendor alone , I am inclined | was thereby cured . LAW DAM . 3d Ed . - 26 402 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

Upon the principal question , the court , sprung up between Hill & Co . and Harwood . below ruled that the plaintiff was entitled but defendant, disregarding this fact, and to recover compensation for the loss and assuming that the difficulty would be ar injury sustained by the plaintiff in conse ranged and the contract with himself per quence of defendant's breach of contract , formed , put the premises up at auction , and and that in estimating the damages upon sold them to the plaintiff . The difficulties . this principle of compensation , the jury however , were not arranged , and he was had the entire range from the amount that sued for breach of his contract . Abbott , C . was paid on the contract to the highest J ., said " the defendant should not have tak value of the land that was proven at the en such a step without ascertaining that he time of the breach , less the amount unpaid would be in a situation to offer some title ; upon the same. " In other words , that the and , having entered into a contract to sell plaintiff was entitled to recover the profits without the power to confer even the shad which she would have made by the good ow of a title , I think he must be responsible bargain she had lost, if such it proved to for the damage sustained by a breach of his be . contract. " There is no doubt that the instruction In Lock v. Furze , L . R . 1 C . P . 441 , the de given by the court is correct as a general fendant, who had a right to grant leases in rule . Where a breach of contract occurs, possession only , made a contract to give One the law aims to make compensation adequate in reversion , and it was held that the plain to the real injury sustained , and to place tiff was entitled to recover for a breach of the injured party , so far as money can do this contract damages measured by the value it, in the same position he would have OC- of the lease bargained for. cupied if the contract had been fulfilled . in Engel v. Fitch , L . R . 3 Q. B . 314 , the Sedg . Jeas . Dam . 174 ; Robinson v. Har defendants , being mortgagees of a lease , sold man , 1 Exch . 855 ; Lock v. Furze , L . R . 1 C. it to the plaintiff , undertaking to give pos P . 41: Ilill r . IIobart , 16 Me. 164 ; Lewis y. session . The mortgagor refused to surren Lee , 1. Ind . 199. der possession , and the defendants , though And where the carrying out of the con entitled to put him out by ejectment , de tract would have given one of the contract clined to exercise that right . The court held ing parties the enjoyment of a particular the plaintiff entitled to recover full damages , thing , and he has lost it , the damages he | and the exchequer chamber afterwards af will be entitled to are the value of that firmed the judgment. L . R . 4 Q. B. 0.79. which he has lost . Id . And see Engel v. In Bush v. Cole , 28 N. Y . 261 , auctioneers Fitch , L . R. 3 Q. B. 314. having authority to sell at not less than $ 2, To this general rule , which is so entirely 800 sold to the plaintiff at $2, 250 . The court undisputed as to make further citation of was of opinion that, although their princi authority superfluous, an exception was in pal was not bound by the contract of sale , troduced in the case of contracts for the the auctioneers were , and that the measure sale of land by the decision in Flureau v. of damages was the value of that which the Thornhill , 2 W . Bl. 1078. That case is not contract, if performed , would have assured so fully stated nor so completely reasoned to the vendee . as would be desirable , but though often Pumpelly V. Phelps , 40 N. Y. 59, was a criticised on this account, and sometimes case where a trustee , having power to sell questioned , it has stood the test to the | on the written consent of the cestui que present time, and is the law of England at trust , contracted in his own name without this day . “ Upon a contract for purchase ," such consent . The cestui que trust , refusing said Chief Justice De Grey , “ if the title to affirm the sale, the purchaser was held proves bad , and the vendor is , without fraud , entitled to full damages . incapable of making a good one, I do not The principle underlying these cases is think that the purchaser can be entitled to that , if a party enters into a contract to sell any damages for the intended goodness of knowing that he cannot make a title , he is the bargain which he supposes he has lost .” remitted to his general liability , and the ex And Blackstone, J ., added : “ These con ception introduced by Flureau v. Thornbill tracts are merely upon conditions, frequently does not apply . So if a person undertakes expressed but always implied , that the ven that a third party shall convey , and is un dor has a good title. If he has not, the re - | able to fulfill his contract , the authorities turn of the deposit with interest and costs , are that he shall pay full damages . Such is all that can be expected .” contracts are speculative in character , and l'pon this exception to the general rule the party giving them understands the risk subsequent cases have ingrafted some other he assumes when the covenant is entered in exceptions . The leading one of these cases to Dyer v. Dorsey , 1 Gill & J . 440 : Pink is Hopkins v. Grazebrook , 6 Barn . & C. 31 . | ston v. Huie , 9 Ala . 2.32 ; Gibbs v. Jemison ,

In that case it appeared that Hill & Co. 12 Ala . 820 ; Gale v. Dean , 20 Ill . 320 .

had contracted to sell certain premises to There are also numerous cases which de , one IIarwood and Harwood had contracted cide that if the vendor acts in bad faith - as , , , to sell to the defendant . A difficulty bad if having title he refuses to convey or dis BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY .

a ble himself from conveying - the proper 133; Whiteside V. Jennings , 19 Ala . 781 ; measure of damages is the value of the land Hill v. Hobart , 16 Me. 164; Warren v. at the time of the breach ; the rule in such Wheeler, 21 Me. 484 ; Hopkins v. Yowell , 5 case being the same in relation to real as to Yerg . 305 ; Barbour v. Nichols , 3 R . I . 187 ; personal property . McConnell ' s Heirs V. Nichols v. Freeman , 11 Ired . 99 , - are here re Dunlap 's Devisees , Hardin , 41 ; Gerault v. ferred to, and the weight of authority op Anderson , 2 Bibb , 513 ; Davis v. Lewis , 4. posed to them is so overwhelming , and rests Bibb , 456 ; Driggs v. Dwight , 17 Wend . 71 ; | upon decisions so fully and so carefully con Dustin v. Newcomer, 8 Ohio , 49 ; Adams v. i sidered , that even those who are dissatisfied McMillan , 7 Port . 73 ; Trull v. Granger, 8 N. | with the doctrine declare the principle too Y . 113 ; Martin v. Wright , 21 Ga. 504 ; Cox | firmly settled to be disturbed . See Engel v. v . Henry , 32 Pa. 18 ; Burr v. Todd , 41 Pa. Fitch , L . R . 3 Q. B . 314 ; Sedg. Meas . Dam . 206 . And the cases before referred to in | (3d Ed .) 188 , marg . note . which a party undertook to sell that which One very strong reason for limiting the re he Hdid not own , and knew he could not con - covery to the consideration money and in trol, may also , where the other party is not terest in cases free from bad faith is that informed of the defect , be considered as in the measure of damages is thus made to volving a degree of bad faith , and have gen conform to the rule where the party assumes erally been so regarded by the courts . to convey land which he does not own , and But, on the other hand , if the contract of an action is brought against him on the cove sale was made in good faith , and the vendor nants of title contained in his deed . This for any reason is unable to perform it, and reason is made specially prominent in many is guilty of no fraud , the clear weight of au of the cases ; and it cannot be denied that thority is that the vendee is limited in his it is an anomaly if the vendee is restricted recovery to the consideration money and in to the recovery of one sum when an ineffec terest, with perhaps , in addition , the costs of tual deed is given , but allowed to recover a investigating the title . Walker v. Moore , 10 larger compensation in case the vendor , when Barn . & C . 416 ; Sikes v. Wild , 1 Best. & S. he discovers the defect in his title , has the 587 ; Id ., 1 Best . & S. 421 ; Baldwin v. Munn , manliness to inform the vendee of the fact , 2 Wend . 399 ; Peters v. McKeon , 4 Denio , and to decline to execute worthless papers . 546 ; Conger y. Weaver , 20 N . Y. 140 ; Allen Had IIammond executed and delivered a V. Anderson , 2 Bibb , 415 ; Goff v. Hawks, 5 deed when it was called for, the present J . J . Marsh . 341 ; Combs v. Tarlton 's Adm 'r , controversy could not have arisen ; and his 2 Dana , 464 ; Seamore v. Harlan 's Heirs, 3 failure to do so , which worked no additional Dana , 410 ; Herndon v. Venable , 7 Dana, wrong to the vendee , and was all that he 371 ; Hall v. Delaplaine , 5 Wis . 206 ; Foley could do consistent with good faith and bon v . McKeegan , 4 Iowa, 1 ; Sweem v. Steele , orable conduct , is the only ground upon 5 Iowa , 352 ; Blackwell y. Lawrence Co., 2 which the plaintiff can claim to retain the Blackf . 143 ; Thompson v. Guthrie , 9 Leigh , large damages for the loss of her bargain 101 ; Loomis v. Wadhams , 8 Gray, 557 ; Dun which were awarded her in the present case. nica v. Sharp , 7 Mo. 71 ; McClowry v. Cro So long as the rule stands which thus limits ghan , 31 Pa. 22; Dumars v. Miller , 34 Pa . the damages in suits upon the covenants of 319 ; Hertzog v. Hertzog 's Adm 'r , Id . 418 ; title, so long ought we also , I think , to ad McNair v. Compton , 35 Pa . 23 ; Saulters v. here to the decisions which restrict the re Victory , 35 Vt. 351, covery , as above stated , in actions upon con There are some cases which disregard the tracts to convey . exception introduced by Flureau V. Thorn It remains to inquire whether the vendee hill, and which , treating the question of good in the present case is entitled , under the de or bad faith in the vendor as an unimportant cisions, to recover damages for the loss of circumstance , hold that the measure of dam her bargain , either on the ground that the ages on breach of a contract to convey lands vendor assumed to sell what he knew he should be the same as on breach of a con did not own , or that he has acted in bad tract for a sale of personalty . It is remark faith . The vendor 's good faith in the whole able that, though this general subject has transaction was fully conceded on the trial, been very fully discussed in the English and was assumed by the circuit judge in his cases , and in many of the American cases rulings. And the instructions the judge gave referred to , the cases opposed to them ap are not based on any supposition that the pear generally to have entirely overlooked vendor had knowingly bargained to sell that discussion , and are evidently decided on what he did not own . The contrary is clear first impression and without that investiga ly inferable from the evidence . It is true the tion and reflection which so important a sub | vendor understood that he had not yet ob ject usually receives . The cases of Hopkins tained the legal title , but he is assumed to v. Lee , 6 Wheat . 109 ; Wells v . Abernethy, 5 | have supposed he had the equitable title , Conn , 222 ; Buckmaster v. Grundy , 1 Scam . , and a right to compel the conveyance of a 310 ; McKee v. Brandon , 2 Scam . 339 ; Gale legal title ; and the contract was, there ; , , v. Dean , 20 Ill . 320 Cannell v . McClean 6 fore no more of a speculative character than ; , . & J . v . Bryant 9 . | if supposed Har 297 Hambrick Ga he had the legal title to have 404 BREACH OF CONTRACTS RESPECTING REAL ESTATE . been already vested in him . The general , which would give the vendee in every case a principle does not depend on whether the compensation for the loss of his bargain , vendor 's supposed title was a legal one or where for any reason the vendor fails to per not . See Pounsett v. Fuller , 17 C . B. 660 . form , I think he erred , and that the judg. When , therefore , the circuit judge laid down ment should be reversed , and a new trial or a general rule which made the belief or good dered . faith of the defendant unimportant, and I The other justices concurred . BREACH BY VENDOR OF AGREEMENT TO SELL AND CONVEY . 405

DOHERTY v. DOLAN . damages necessarily resulting to the plain tiff because the defendant nad refused to 6.5 Me. 87, 20 Am . Rep . 677.) convey . The general rule of damages in this Supreme Judicial Court of Maine . March 1, form of action is well settled . If the plain 1876 . tiff had paid nothing down , and the land was worth at the date of the breach more than Exceptions from superior court , Cumber he was to give for it, the difference would be land county . his profit , and he could recover that amount. Action on the case for damages for a there was no difference between the con breach of contract to convey land . If tract price and the value the land , when The plaintiff had paid $1,000 at the time of it should have been conveyed , and nothing the contract was made , and agreed to pay the was paid , then his damages would be nom balance, $9, 250, upon receipt of the deed . only ; , , There was evidence tending to show that inal or if in such case the land was worth less than the contract price , he would the property was incumbered , and the de then have nominal damages for the technical fendant thereby unable to give a clear title breach . So, if the plaintiff had paid the con thereto , that the plaintiff offered to pay the tract price in full , he could recover the value defendant the purchase money due by the of the land at the time it should have been terms of the memorandum before the suit conveyed , was brought, and that the property was to him whether the value was then more or less than the contract price . And worth $10, 000 . logically , being part l'pon the question of damages the presid so it follows there a payment , and the land worth less than the ing justice instructed the jury as follows : contract price at the time a conveyance " I instruct you for the purpose of this case should have been made , that the damages that the plaintiff , if entitled to recover at all, re coverable would be what the land was then is entitled to recover the $1,000 , which it is , price paid admitted he paid toward the purchase mon worth less the amount of the for it that remained unpaid . By paying the full ey of this property . It is entirely unneces price , the vendee is entitled to the land or its sa ry to consider the other elements of dam , may age, such as loss of time and loss of interest , value whatever the value be . The re covery of damages , according to these rules , because the whole claim of the plaintiff here puts good for damages is $ 1,000 . He fixed his claim him in as condition as if the con tract had been performed . He gets exact for that in his writ , and cannot , in any event, in demnity . Warren v. Wheeler , 21 Me . 18 +; recover more than that ." , ; The defendant , the verdict being for the Hill v. Hobart 16 Me. 164 Robinson v. Heard , 15 Me. 296 ; Russell v. Copeland , 30 plaintiff for $ 1,000 , alleged exceptions . Me. 332 ; Lawrence v. Chase , 54 Ne. 196 . , M. P . Frank for plaintiff . T . H . Haskell , The plaintiff , however , while he admits for defendant . that this is a correct statement of the gen eral rule in cases where a vendor refuses to PETERS , J. The defendant contends that convey to the vendee when he has the power the election as to the time when a deed was to do so , contends that a different rule pre to be made out was with him . If that is so , vails in cases where the vendor , through un he has $1,000 of the money of the plaintiff anticipated causes , which he cannot control, prepaid to him , which he can keep as long although acting in good faith , is unable to as he pleases , and never make the deed . The convey ; contending that in such case the implication from the agreement is that a deed measure of damages is the amount of con is to be delivered within some time , and sideration actually paid and interest thereon . that must be a reasonable tiine . In this rul If this position is a correct one, the verdict ing the court was right . should stand . In another respect , however , we think an This rule , as contended for by the plaintiff , error was committed at the trial . The judge is undoubtedly the established law of the should have ruled that the plaintiff could English courts . Many of the American state recover as damages what the land was worth courts have adopted it. It prevails in New

at the time the defendant should have fur . York , although much doubt of its correctness , so of nished the deed less much the consid - | has been expressed by individual members ,

agreed to given it eration be for as remained of the courts of that state . See remarks of , , , , ,

unpaid . $ 1 That could not exceed 000 as Denio J . in Conger v . Weaver 20 N . Y . ; , , , in . it of J . in v . no more was claimed the writ But 140 Mason Pumpelly Phelps 40 , , . If

might of be less the value the property N . Y . 59 . See also s . C . sub nomine Brinck , , , $ 10 v .

Phelps 24 . was but 000 then the damages under erhoff Barb 100 . The supreme , this rule would have been but $ 750 while the court of the United States does not sustain , peremptory y direction was that the damages the doctrine . Hopkins . Lee 6 Wheat . 109 . , , $ 1 if should be 000 the plaintiff could recover In Sedg . Dam . 6th( Ed . ) 218 after reviewing , . at all Herein the learned judge erred . many English and American cases it is by ,

is upon The action based the contract set the author strongly disapproved . We do not ,

ting , out that it had been broken upon the discover that the precise point namely

part s . It is a at of the defendant not suit for whether the measure of daniages depe , ,

paid a l upon of the consideration but suit for the all the cause the failure to convey 406 BREACH OF CONTRACTS RESPECTING REAL ESTATE . has ever been noticed in any reported case in , knows , when he contracts , his ability to con our own state . Still it can hardly be regard vey a title , and the vendee ordinarily does ed here as a new question . We think it is not. The vendor can provide in his contract virtually settled by decisions in analogous against such a contingency as an unexpected cases . In the case of personal property the inability to convey . He can also liquidate measure of damages has uniformly been the damages by agreement . The measure of based , in this state , upon the value of the relief afforded by our rule is a fixed and defi articles when they should have been deliv - nite thing . The other rule is not easily ap ered , and not upon the consideration paid plied to all cases, and the books are burdened therefor . Smith v. Berry, 18 Me. 122 ; Tur with discussions and refinements in relation long v. Polleys , 30 Me. 491 ; Berry v. Dwinel , to the modifications and restrictions and 44 Je. 255 ; Bush v. Holmes , 53 Me . 417 . qualitications which , in different jurisdictions , The reason assigned in the New York cas - | have been annexed to it. See notes to Sedg. es (and in cases elsewhere ) for the adoption Dam ., before cited . of the rule there adopted is the analogy that But the ruling would have been right in this is claimed to exist between actions for the case had the action been for money had and breach of a covenant to convey land and ac received , and it could have been made so by tions for the breach of a covenant for the amendment . The declaration is somewhat quiet enjoyment of land and for warranty of in the nature of a general count , as it is . title . Baldwin v. Munn , 2 Wend . 399 ; Peters although not strictly and technically such . V. McKeon , 4 Denio , 546 . But that can be no The cause was tried in the same manner and argument for the doctrine here ,but conclusive upon the same proofs as if the writ contained argument against it, inasmuch as , while the the money counts . If it had contained them . rule of damages in those courts , under the the plaintiff would have been entitled to re covenants of quiet enjoyment and warranty cover the $ 1,000 paid by him and interest of title , is the consideration paid for the land on it, upon the ground that by the institution and interest , the measure in this state is the of the suit the contract was by him rescind value of the land at the time of eviction . ed . He had a right to rescind . The de Hardy v. Nelson , 27 Me. 525 ; Elder v. True , fendant did not keep his contract . His fail 32 Me. 101, and cases there cited . Still it is ure was a total one. For that reason it is not to be admitted that a complete similitude clear , upon the authorities, that the money exists between the two classes of covenants paid was recoverable back . Keys v. Har in their legal bearing and effect . There is wood , 2 C . B. 305 ; Planche v. Colburn , 8 Bing . less harshness in applying our rule to con 14 ; Miner v. Bradley , 22 Pick . 457 ; Canada tracts to convey than to the case of cove v. Canada , 6 Cush . 15 ; Appleton v. Chase , 19 nants in deeds . Improvements are not so Me. 74; Wright v. Haskell , 45 Me. 489 ; 2 likely to be made upon the land in the former Pars . Cont . p. 191 ; Lawrence v. Taylor , 5 as in the latter case by the person in posses Hill , 107 ; Reddington v. Henry , 48 X. H . sion . The correctness of the comparison is 273 ; Loder v. Kekule , 91 E . C. L , 128 . questioned in the opinion of the majority of We think it would best accord with jus the court in Pumpelly v. Phelps, vide supra . tice to the parties to allow the verdict to We think the rule that we are disposed to stand if the plaintiff desires it, upon terms. adhere to , as adapted to all cases, a reason Therefore we advise the court below to able one. The pecuniary damages are the permit an amendment of the declaration by same to the vendee whether the motive of the substitution of a count for money had the vendor in refusing to convey is good or and received in lieu of the present count, up bad . It is a difficult thing to ascertain on the condition that the plaintiff shall re whether or not a vendor is actuated by good cover no costs in the action , and the defend faith in his refusal to convey . There can ant none . easily be frauds and deceits about it. The If this is done , the exceptions to be over vendor is strongly tempted to avoid his agree ruled ; otherwise to be sustained . went where there has been a rise in the value of the property . The vendee, by making this APPLETON , C. J ., and WALTON , BAR contract , may lose other opportunities of | ROWS , DANFORTH , and VIRGIN , JJ., con making profitable investments . The vendor | cur . BREACH OF VENDOR ' S COVENANTS . 407 by | to VeGARY V. HASTINGS . (No . 2, 267 . ) United States said lands certain let , ters patent dated on the 2d of March the , ( 39 Cal . 360 2 Am . Rep . 456 . ) , , 10th of May and the 29th of June 1867 . ,

Supreme of . April .

Court California 1870 by That reason of the premises the plaintiff

Appeal , from district court city and coun has not been permitted quietly and peacea ty of . San Francisco bly to possess and enjoy the premises con

veyed , by ,

, but was evicted the United States E . W . McGraw for appellant . S . F . & L .

paramount , by , the owner of the title which Reynolds for respondent .

eviction he has suffered damage .

, complaint J . is TEMPLE This an action upon a To this the defendant inter

posed a general on ground covenant for quiet enjoyment . The com demurrer the , plaint avers : That on the 13th of August that the complaint does not state facts sutii , , , A . D . 1836 the defendant for the consid cient to constitute a cause of action and , , eration of $ 9 000 conveyed to plaintiff and also on the ground that the cause of ac

certain other parties a certain tract of land tion is barred by the statute of limitations .

, , plain situate in Solano county . In the deed ex The demurrer was sustained and the , ecuted by defendant there was the follow tiff declining to amend tinal judgment was

, plaintiff ing covenant : “ And the said Daniel V . entered for the defendant and the , Hastings and his heirs the said premises has appealed .

principal question in in the quiet and peaceable possession of said The involved this , is in parties of the second part and their heirs appeal whether the acts set out the ,

complaint a of and assigns and against the said party of constitute breach the cove , , the first part his heirs and against all and nant of quiet enjoyment . The defendant every person and persons whomsoever law contends that there must have been an ac ,

by a paramount fully claiming or to claim the same shall tual eviction title under the

and will warrant and by these presents for - judgment of a competent court . Many ear , ly

especially in of ever defend . " That the plaintiff and his cases the state New , , to co tenants- immediately entered into posses York seem sustain this view and two

Reports . sion of the premises as conveyed under the cases are cited from our own The , 2 . v . of is deed . That plaintiff ' s co - tenants conveyed first the case Fowler Smith Cal , ,

39 . attempt to pay to him for a valuable consideration their That was an resist the

interest in the land on the 27th day of Sep ment of purchase money for premises con , , , , tember 1858 and plaintiff immediately veyed without special warranty prior to

thereafter took exclusive possession of the the adoption of the common law in this

, by entire premises . That the only title claim state and it was claimed that the civil

ed by the defendant at the time of his cove law certain covenants were implied . Jus , , , nant was through Vallejo who claimed to tice Murray in discussing the question said , , own a large tract of land known as the that no covenants were implied except those , , * Suscol Rancho ” of which the premises con for quiet possession and that to constitute , veyed were a part under a grant from Mex - a breach of that covenant there must be an

, Vallejo ico and that had no other title save eviction under a judgment of a competent ,

supposed grant . under said That at the court founded upon a paramount title . , time of said conveyance by defendant the He relies upon the case of Waldron v . , petition of Vallejo for the confirmation of McCarty 3 Johns . 471 . In that case there

the grant was pending in the courts of the was a foreclosure and sale of the premises , United States and was finally rejected on under a mortgage which existed at the time , , the 10th of June A . D . 1862 and thereby of the covenant . The covenantee purchased , the title of the United States to the land at this sale and brought suit upon his cove , declared paramount - of all of which facts nant . The court held that there had been

the defendant had due notice and full knowl no eviction . It was not necessary in that

edge , case to hold that the eviction must in all plaintiff thereupon requested The the de cases be by legal process . This is a leading ,

to repay purchase money fendant him the case upon that side of the question and was , for said land or to procure the title at his followed by several others in that state . , , ,

expense of establishing own both which the defendant | When understood however as refused to do . The plaintiff thereupon sub the general proposition that there must be , , ,

to paramount in mitted the title and con an actual eviction under a judgment these

junction , holding with others who were un cases are contrary to the more recent deci , , der Vallejo sent an agent to Washington sions of that state as we shall presently ·

. Reports is and procured an act of congress to be pass show The other case from our , , , | v . 5 . . It a ed on the 3d of March 1863 granting the Norton Jackson Cal 262 was suit ,

right of pre - emption to purchasers certain for the purchase money and was resisted on , by on the Suscol rancho . The plaintiff the ground that there had been a breach of , , reason of the conveyance from defendant covenant of warranty which for all the ,

of persons to pur - | was one the authorized purposes of this case is identical with the ; chase under said act and in pursuance of covenant for quiet enjoyment . The pur

its provisions he acquired the title of the chaser was still in possession . Mr . Justice 408 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

Heydenfeldt , in delivering the opinion of , and where the covenantee is rightfully out the court , says : “ There is no breach of the of possession , either by due process of law covenant without eviction , because there or by an entry of the rightful owner, or by would be no correct measure of damages . , a surrender to one having a paramount title , It would be a hardship to allow the pur there is an eviction , the covenant is broken , possession chaser to remain in and recover and an action will lie . " , the purchase money also . " In this case Mr . Rawle in his treatise on Covenants , , there had been no eviction either actual or for Title has reviewed the cases upon this ; ; constructive the purchaser was still in pos subject at great length and we think an ex ; , session under the title of his covenantor amination of the authorities cited by him by and no question can be raised as to the cor as well as those cited counsel in this , rectness of the decision . The broad state case fully justifies the assertion that " there ,

in opinion ment the conclusion of the that can hardly be said to be a class of tases , , there must be an eviction by process of law now entitled to rank as authority which by cannot be sustained authority either in hold that an actual dispossession by process

consequent upon a judgment is this country or in England . Copp v . Well of law neces , , ; burn 2 Dev . 390 Foster v . Pierson 4 Lev . sary to a breach of the covenant of war ; , , ; ranty . " 617 Stewart v . Drake 9 X . J . Law 141 , Rawle Cov . 242 . The true rule deducible from the recent , Indeed there are many cases where an cases is that the covenant is broken when

eviction without process of law has always ever there has been an involuntary loss of , a been considered breach of the covenant possession by reason of the hostile assertion

paramount . is it as in the case where the true owner at com of an irresistible title Nor

, necessary paramount mon law had the right to enter without suit that the title should

and where the covenantee was never able to | hare been established by judgment before the

obtain possession of the granted premises covenantee will be authorized to surrender

which were in possession of the owner of the possession . It is enough that the true the paramount title . owner asserts his title and demands the pos , , . If it is The case of Waldron v . JcCarty as un session his right to have possession ,

is contrary to it

certainly is duty of derstood the doctrine laid the the covenantee to , , in v . 4 . down Greenvault Davis Hill 613 surrender it to him . The covenant is for . ,

In . says : that case Mr Justice Bronson quiet possession and against a rightful eric “ in There are some dicta the books that tion . To constitute a breach of this core , , there must be an eviction by process of law | nant it cannot be required that the core I no it but have met with case where was nantee should maintain a wrongful posses , ,

so adjudged . ” again : “ Upon principle And sion and subject himself to be treated as a

trespasser . object of a by I can see no reason for requiring an evic The suit the true

tion by legal process . Whenever the gran owner would be to compel the covenantee

is possession a tee ousted of by one having to do that which he ought to have done with

right to property paramount to lawful the out suit . It could not have been contem , the title of the grantor the covenants of plated by the parties to the covenant that the

Warranty quiet , and for enjoyment are broken covenantee should refuse to do what the law * * * grantee may . and the sue When enjoins upon him as a duty .

the grantee surrenders or suffers the pos Vor can we perceive how the covenantor

to pass a legal session from him without would be benefited by an eviction under a

, upon he contest takes himself the burden judgment . It was never considered neces

of showing that the person who entered sary that the covenantor should have notice

had a title paramount to that of his gran of the pendency of the suit . The judgment

tor . But there is no reason why such sur - | might be obtained without any real trial of ; ,

expense of render without the trouble and the merits of the title and besides in the

a deprive a remedy lawsuit should him of | action upon the covenant it is incumbent

on the covenant . The grantor is not injur upon the plaintiff to establish that the title by ed such an amicable ouster . On the con to which he has submitted is a paramount , , . trary it is a benefit to him for he thus title ,

Although be an it is silves the expenses of an action against the there must eviction

grantee to recover the possession . It may not necessary that there should be an actual

in premises be inferred this case that the dispossession of the grantee . If the part

unoccupied . Blodget were then entered mount title is so asserted that he must yield , , go . and still holds the land This was an ouster to it or out the covenantee may pur , , or disseisin of the plaintiff ' and he is well chase or lease of the true owner and this

entitled to an action on the defendant ' s will be considered a sufficient eviction to " covenant . constitute a breach . He then no longer ,

In of v . Poling 6 . the case Fowler Barb claims under his former title . So far as that , , , , 16 ) Mr . Justice Edmonds after reviewing title is concerned he has been evicted and , the decisions in that state says : “ From is in under the paramount title . Sugd . Vend . , ; , N . H . v . | these conflicting authorities I deduce the 745 and note Loomis Bedell 11 , ; ; true rule in this state to be that there must 74 Hamilton v . Cutts 4 Mass . 349 Turner , , ; ; be an actual disturbance of the possession 1 v . Goodrich 26 Vt . 709 Sprague v . Baker BREACH OF VENDOR ' S COVENANTS . 409

17 Jass . 586 ; Rawle , Cov . 278 et seq ., and , to be an eviction . Bemis v. Smith , 10 Metc . cases cited ; Noonan v. Lee , 2 Black , 507 ; ' (Mass .) 194 . See , also , Dupuy v. Roebuck , Funk v. Creswell , 5 Clarke (Iowa ) 86 ; Brady 7 Ala . 488 ; Brown F. Dickerson , 12 Pa. 372 ; v. Spurck , 27 n . 478 ; Stewart v. Drake , 9 Stewart v. Drake , supra . We are therefore N . J . Law , 139 – 275. clearly of the opinion that the facts stated The next question which arises in this case in the complaint show such an eviction as is whether there was such a hostile asser will constitute a breach of the covenant , and tion of the paramount title as would author - the demurrer was improperly sustained on ize the plaintiff to submit to it. There is that ground . In the complaint the plaintiff no controversy that the title was in the has set out the facts which constitute the United States . The petition of Vallejo , for eviction , instead of averring the fact of an a confirmation of the title , was pending at eviction under paramount title as the ulti the time of the conveyance . Vallejo 's claim mate fact, of which the facts stated are the was rejected and declared invalid . It does evidence . No objection is raised to this not appear that anything further was done course in this case , as doubtless both parties on the part of the government to cause a were anxious to obtain an early decision as settlement or sale of the land . In the case to the liability of the defendant , and many of Rush v. Casey , 39 Cal. 339 , we held that, i cases sanction this form of pleading . We are inasmuch as by section 13 of the act of con - | clearly of the opinion , however , that the oth gress of March 3, 1831 , establishing a board er is the proper course ; though , as the point of land commissioners , for the adjudication is not raised , we do not decide this case up of private land claims, it is provided that all on that ground . lands included in claims which shall be final. The transcript does not show when the ly decided to be invalid shall be deemed part suit was commenced , and therefore we can of the public domain of the United States , not pass upon the question of the statute of the final rejection of the claim operated , pro - limitations . The cause of action , however , prio vigore , to restore the land to the mass did not accrue until an eviction , actual or of the public domain . Without any further constructive . In this case that would be at action on the part of the government and I the time the plaintiff entered and began to by operation of law , the land became liable , hold under the paramount title . to entry for the purpose of settlement , and It is well settled that the rule of dam pre - emption . Of course , therefore , when the | ages, where there has been an actual loss of title of Vallejo was finally rejected , the only the premises , is the purchase money and in alternative left the plaintiff was to purchase terest . Where the plaintiff has purchased the land from the United States , or it would the paramount title , it is the sum actually be open to settlement and pre - emption to all and in good faith paid for the paramount who possessed the proper qualification . title and the amount expended in defending This is almost a parallel case to many his possession , provided such damages shall which are found in the reports as to the hos in uo case exceed the purchase money and tile assertion of the paramount title . Thus , interest . The question as to whether the in Loomis v. Bedell, supra , a prior convey - i plaintiff can recover the costs of sending an ance had been made by the covenantor . Upon agent to Washington to procure a law of con the death of the prior grantee , the land was gress authorizing the plaintiff to purchase sold by his administrator at public auction , his land , cannot arise on this demurrer , and purchased by the plaintiff , and it was which is general and to the whole complaint . held that these facts constituted an eviction . On the facts stated the plaintiff is entitled In Sprague v. Baker there was a mortgage to recover the disbursements above mention upon the premises , executed by a prior own- | ed , and the demurrer ought therefore to be er. The holder of the mortgage threatened overruled . to take possession under his mortgage unless The judgment is therefore reversed , and the amount due upon it was paid . It was cause remanded , with directions to overrule paid by the covenantee , and this was held the demurrer . 410 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

PITCHER v. LIVINGSTON . son , why the increased value of the land itself cannot be recovered , is because the cor (4 Johns. [N . Y.) 1.) enant cannot be construed to extend to any thing beyond subject , Supreme Court of New York . Feb. Term , 1809 . the matter of it that is, the land , and not to the increased value of . , plaintiff , Mr Foot for . Mr. Slosson for it , subsequently arising from causes not ex defendant. isting when the covenant was entered into . For the same reason , the covenantor ought , Although VAN NESS J . it is not express not to recover for the improvements ; for ly , stated in the case I shall assume the fact these are no more the subject matter of the to be, that the declaration contains an aver contract between the parties , than the in ment that the plaintiff had been evicted , in creased value of the land . The doctrine con consequence of a total failure of the title de tended for by the plaintiff' s counsel , is , that rived to him under the deed from the defend the damages sustained by the covenantee at ant. This fact being assumed , there is no the time of the eviction , ought to be the meas difference between the present case and that ure of compensation . Most clearly , then , the of Staats v. Ten Eyck 's Ex’ rs, 3 Caines , 111f, increased value of the land is as much with except , , , improve that in this case beneficial in the reason of this rule, as the improve ments have been made by the plaintiff upon ments; and upon the same principle that the the property , the value of which he contends covenantee is entitled to the one, he is to the he is entitled to recover . The case just men other . tioned is among the most important and inter But if the value at the time of eviction is esting , of any that have ever been brought to be the measure of damages , upon what before this court for decision ; and , accord principle is the consideration and interest , as ingly , it appears to have received the most such , recoverable in addition to the improve deliberate consideration . I not only submit ments ? These must be laid out of view ; to the authority of that case , but I take this and the then value be ascertained without occasion to express my perfect acquiescence reference to them . Besides , if, in determin - - in the reasons , upon which the determination ing the rule of damages , the increase of value of it appears to have proceeded . The cove . is to be taken into view , by parity of reason . nants upon which the breaches were assign ing, it would be proper , and what would be , pres ed in that case were the same as in the required by a just reciprocity , to take into ent, viz . the covenant of seisin , and for quiet consideration any contingent diminution of enjoyment. The court decided , that the dam value . Ersk . Inst. 206 . But this has never ages , plaintiff which the was entitled to re been heard of nor pretended . No such prin cover , were to be limited to the consideration ciple is to be found in the common law , not expressed in the deed , with the interest there withstanding these covenants have been in , attending on and the costs of suit the evic use upwards of two hundred years . I think tion . But in addition to the sum which the this circumstance affords an argument plaintiff , according to this rule , would recov . against the measure of damages insisted up er , he contends that the defendant is bound on by the plaintiff , and which , of itself , is to indemnify him for the loss of his im nearly decisive , that the rule is without legal provements . These are estimated at 925 dol foundation . lars ; and the only point left open to discus In illustration of my opinion on this part of sion , is, whether he has a legal right to de . the argument, I will state a case . A . gives mand this sum ? a conveyance , containing covenants of seisin In Staats v. Ten Eyck 's Ex'rs , the court de and for quiet enjoyment , of a house and lot. termined that the plaintiff was not entitled The house constitutes two- thirds of the whole to recover any damages on account of any value . The house is afterwards burnt . Then increased value of the land . Here a distinc the grantee is evicted for a failure of the tion is attempted to be made between an ap grantor 's title . He then resorts to both his preciation of the land itself , and that appre covenants , which , of course , are broken , for ciation of it which is produced by the erec indemnity . What would be the measure of tion of buildings , or the labour bestowed up damages ? the value of the lot, at the time of on it in clearing and cultivating : a very eviction , being one- third of what the whole nice , and , as I apprehend , a speculative dis- cost him ; or the value , as ascertained and tinction , to which it would be difficult, if not, agreed upon by the deed itself ? No doubt in most cases, impossible , to give any practi the latter . Whenever the grantee ' s title has cal effect , without danger of the most flagrant proved to be entirely defective, and there is injustice . The reasoning of the judges , an eviction consequent thereon , the grantee whose opinions are reported in the case al has a right to rescind the contract , and then , luded to , goes very far , if not conclusively , as in other cases depending on the same prin to prove , that such a distinction is utterly ciple , he recovers back , upon his covenants , without foundation . The admission that it what he has paid , with the interest . Fielder might possibly exist , has probably given rise v. Starkin , 1 H . Bl. 17 ; Flureau v. Thorp . to this action , which , otherwise , I believe , hill, 2 W . Bl. 1078 . would not, after that decision , have been la the case just put, I have supposed , that brought. One, and perhaps the principal rea- I both the covenants of seisin and for quiet BREACH OF VENDOR ' S COVENANTS . 411 enjoyment were broken , and that breaches have been broken . The plaintiff , according for both were duly assigned ; and I have ly , has a right to recover on both ; but as the shown that, if the value of the property at amount of the recovery would , according to the time of eviction is to be the measure of my ideas , be the same on cach , he must elect damages , it necessarily follows , that such on which of them he means to rely , and take diminished value is all which ought to be re nominal damages on the other . The plaintiff covered . It is conceded , that, upon the cove is entitled to but one satisfaction , and he has nant of seisin only , the recovery is to be con his remedy on either of the covenants , at his fined to the consideration and interest . On election , to obtain it. It will hardly be said , the covenant for quiet enjoyment , therefore , that he can have judgment for the same sum the plaintiff must rely , to recover compensa on both the covenants . tion for his improvements . Let us then ex The covenant against incumbrances stands amine whether, consistently with certain upon a different footing , and is governed by fixed legal principles, the covenantee can re different principles . That is strictly a cove cover a greater sum of damages in any case pant of indemnity ; and the grantee may re under the covenant for quiet enjoyment, than cover to the full extent of any incumbrances under the covenant of seisin ? upon the land , which he shall have been com An eviction must be shown before a sult pelled to discharge. But even there it will can be maintained on the former covenant . be found , that the same rule prevails , in fix Not so , however , as to the latter ; for that is ! ing the amount of damages , as in actions up broken , if the grantor has no title , the mo on the covenants of seisin and for quiet en ment the deed is delivered ; and the grantee joyment: that is , the party recovers what he has an immediate right of action . Whenever has paid , with the interest , and no more. the eviction is occasioned by a total want of But I consider the question arising in this title in the grantor , then both the covenants cause as settled by authority ; and that , ac of seisin and for quiet enjoyment, are equally cording to established rules of law , the plain broken ; and the grantee has his remedy on tiff is not entitled to any thing more than both . If he proceeds upon the first , he shall the value of the land , as settled by the con recover the consideration expressed in the sideration in the deed . deed , and the interest . But if he proceeds In suits upon the ancient covenant of war upon the last, it is said he shall recover ac - ranty , beyond all dispute , the recovery was cording to the value at the time of eviction ; restricted to the value of the land at the time and , as I have before remarked , he must be of making the covenant . Cases have occur content to recover according to the then red , in which the value of the land has been value , even though it amounts to one half enbanced by subsequent beneficial improve only of the consideration expressed in the ments ; but the rule as to the extent of sat deed . isfaction , has continued inflexibly the same , The case would then stand thus. When the without regard to the increased value , by deed contains both these covenants , if the whatever cause it may have been produced . property at the time of eviction be worth A personal action will not lie , on the covenant one half of the consideration and interest , of warranty , upon the eviction of the free ; the grantee may , notwithstanding , upon the hold (Bac . Abr. tit . Cov . C . ) and for which , , covenant of seisin recover the whole con reason upon the introduction of alienations , sideration and interest . But if the property by bargain and sale new covenants were de . , happen to be worth double the consideration vised but solely for the purpose of securing , by money and interest reason of the im - to the bargainee the personal responsibility , provements may , made thereon he waive the of the bargainor in case of a failure of his , , covenant of seisin and resort to the covenant title . I think I am warranted in saying that , ; designed by for quiet enjoyment and thus recover the it never was the inserti of , whole amount . Can this be possible ? It these covenants to establish any other rule , ; appears to me that to give such an effect to of damages than what previously existed , these covenants is not reconcilable with any because there is nothing in the terms of the ,

principle of justice . law or covenants from which an intention to extend

My understanding of the nature of these the liability of the covenantor can be infer , ; ,

contrary is to be presumed covenants when both are contained in the red but the as , is : of same deed this That the covenant not a single case is to be found where such , , , seisin which relates to the title is the prin - a construction of these covenants which were , cipal and superior covenant to which the in a great measure substituted for the cove , , covenant for quiet enjoyment which goes to nant of warranty has ever obtained . The , ,

possession is . the inferior and subordinate covenant for quiet enjoyment as I have be , I am And not aware that a case can possibly fore remarked is that upon which compen , occur where the grantor can recover a great - | sation for the improvements is to be recov , er amount in damages for the breach of the ered if at all . This covenant has a more ;

of though latter than the former there are strict analogy to the ancient covenant of , many cases where he may recover less . The warranty than any of the other modern cove ; , ,

is brought upon suit here both covenants nants . If then on the covenant of war , , and both in consequence of the total failure ranty the satisfaction recovered in land was , of the defendant ' s title and the eviction 1 to be equivalent to the value of the lands 412 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

granted , as it existed at the time when the , and that the plaintiff had made improve covenant was made , I do conceive , that we ments , in the usual course of agriculture , on are bound to adopt a correspondent rule , the lands conveyed by the defendant to him , when satisfaction is sought to be recovered of a substantial kind , to the value of $925 . in money , in a personal action , on the cove The case of Staats v. Ten Eyck ' s Ex'rs , 3 nant for quiet enjoyment . Caines , 112 , decides two of the questions Such a rule , moreover , I consider to be con which arise out of this case. In that case , formable to the intention of the parties . I though the value of the land had increased question if one grantor out of ten thousand by extrinsic causes , the plaintiff was allowed enters into these covenants with the remotest to recover only the consideration paid , with belief , that he is exposing himself and his the interest, costs , and counsel fees . The in posterity to the ruinous consequences , which terest was allowed , because the purchaser would result from the doctrine contended for was subject to an action for the mesne by the counsel for the plaintiff . By giving | profits ; and in the present case it is to be this doctrine our sanction , we should , in my intended , that the plaintiff is liable to pay apprehension , create a most unexpected and them to the person who has the title , and oppressive responsibility , never contemplated consequently it is to be allowed . It will be by the parties , and inflict an equally unmer seen , that these two questions have received ited punishment upon grantors acting with a similar determination in the supreme ju good faith , and having a perfect confidence dicial court of Massachusetts . Marston v. in the validity of their title to the land , which Hobbs , 2 Mass . 433 . In the case , before they have transferred for what it is reason cited , of Staats v. Ten Eyck ' s Ex’rs, the court ably worth , expressly reserved its opinion , upon a case If any imposition is practiced by the gran like the present , where beneficial improre . tor, by the fraudulent suppression of truth , I ments have been made on the premises after or suggestion of falsehood , in relation to his the purchase . It was then considered , that title , the grantee may have an action on the there might be a difference between the case case , in the nature of a writ of deceit ; and of the rise in value by the natural apprecia in such action he would recover to the full tion of lands , depending in a great measure extent of his loss . Har. & But . Notes to Co. on ideal worth , and the case of improvements ; ; a . Litt. 384a , tit . " Warranty " 1 Fonb . Eq . 366 of beneficial kind , ,

question I 1 Com . Dig . 236 A 8 . This do not think has been set . It

lay in English it is to I am aware that difficult down tled the courts has never been , , any general rule on this subject wholly free decided in our own and consequently it ap , from objection . This is a difficulty which pears to me that we are at full liberty to fix , has been felt by the profoundest jurists in a rule which shall bear analogy to other , , , all ages . I think however that the rule of cases and attain complete justice between , ,

obliges grantor , parties . I the common law which the the cannot pretend to say that , when he believes he has a valid title and the rule which I shall lay down will be free , , ; acts without fraud to refund what he has from objection when applied to all cases , , , received with the interest is as equitable as and I am not sensible that any general rule ; , any that has ever been established and that in almost any given case will invariably be , this is all which upon principles of the most free from exception . It is the very nature , , rigorous justice ought to be exacted from of general rules sometimes to operate harsh ly ; . him but the necessity of a fixed standard of , , , , ,

My opinion is in therefore that this case justice is of more importance to the interests , the plaintiff is entitled to recover the consid of men than one that is capricious and fluc , eration money expressed in the deed with tuating . , , It I the interest and the costs of suit following has think been erroneously said that , ; of . is a the eviction and no more the defect title case of mutual error , on the contrary from my observation and , , , J . It is to SPENCER submitted the court knowledge of the sale of lands I think the , of is by the case made and argued in this cause defect title a matter generally and al , what is the correct rule of damages upon most universally in the peculiar knowledge , covenants of seisin and for quiet enjoyment of the vendor . It is a rare case for a pur , ; contained in a deed conveying lands in a chaser to investigate the seller ' s title and in

grantee improve , case where the has made most cases it is impossible . The buyer re , , ments and where the value of the land has lies on the allegations of the vendor on his ,

appreciated . It is a question also made apparent responsibility to reimburse in case ,

plaintiff is to in whether the entitled recover of eviction upon bis possession of the prop ,

on money paid terest the consideration for erty and emphatically on his covenants of . the lands title and for quiet enjoyment . These core , , ,

It is to regretted is so be that the case loose nants whenever they occur in a deed seem , , , , to to in several respects . It is fair however to me indicate beyond all question that , , infer from the case as it stands and as it the purchaser did not mean to rely on the , , , , was argued that in point of fact both cove title of the vendor alone but that he meant ; , nants were broken that the plaintiff was to have his personal liability as his guaranty . , of in evicted for defect title the defendant The language of the vendor corresponds with BREACH OF VENDOR' S COVENANTS . 413 that of the purchaser , and holds out the idea , generally , there is a want of due caution on that he had sold the land at his own peril, the part of a vendor , who sells without title ; and that he would warrant it to be his . Ex- and not unfrequently there is a mixture of travagant cases have been put hypothetical fraud , which sets detection at defiance . The ly, to shew the enormous injustice of the rule , rule I have advanced , whilst it will restore that the vendor must be answerable for im to the innocent vendee no more than he has provements . It has been asked , if a piece actually lost , will induce greater caution in of land thus sold, with covenants , should be sellers , who , if responsible only for the prin come the site of a flourishing city , what for cipal and interest , will find the selling of tune could , under a rule allowing for im land without title an easy and excellent meth provements , withstand ruin ? It may be re - | od of raising money , instead of resorting to torted to such a question , what is to become borrowing . of the industrious citizen or mechanic , who It follows, from the view I have taken of has spent his hard earnings in erecting his this question , that the plaintiff , under the little house or workshop , relying on the cove covenant for quiet enjoyment , may recover nant in his deed , if he can only get back his the improvements ; and that under the cove purchase -money and interest ? It is not fair , pant of seisin he could not , unless the grantee however , to test a rule by extreme cases . was seised by virtue of the deed , and had To settle a general rule wisely and equitably , been evicted under a title paramount . I have we should have an eye to cases which gen not entered into any examination of the an erally occur, and not be startled , on the one cient method of proceeding under the war hand or the other , by those occurrences which rantia chartæ , and the rule which obtained are rare and few . In general , the defect of in such case , under the writ of cape ad valen title happens in sales between man and man , tiam ; because the covenants of warranty where the improvements are of the ordinary were then considered as real covenants bind and beneficial kind . If the improvements are ing only on the grantor and his heirs . It merely to gratify the eye of the individual, has, however , been urged that the introduc and to pamper his vanity and pride , a jury tion of the covenants of seisin and for quiet would be warranted to take those things into enjoyment , were substitutes for the covenant consideration in their assessment of damages . of warranty , and that the same rule ought I lay it down as a rule , which cannot re to follow the substituted covenants . It ap quire much illustration to enforce it, on the pears to me much more proper to consider the score of analogy and justice , that in actions introduction of personal covenants in the for a breach of covenant , the damages are to alienation of real property , as immediately be estimated according to the value of the assimilating themselves to other personal thing , when the covenant was broken . Thus , covenants and contracts , and as subject to the in a covenant for the delivery of specific prop same rules of construction , and the same rule erty at a given day, in case of a failure , the of damages , whenever they are broken . If rule invariably is, to allow in damages the so, the covenant for quiet enjoyment was not value of the thing on the day it ought to broken until the eviction , and the rule of dam have been delivered , and when the covenant ages would be the property lost at that time , was broken . So, also , on contracts for the which would include the price paid for the delivery of stock , the value at the time it | land , and the value of those erections and im ought to have been delivered , and even at the provements which had been added at the time of trial, has been the criterion of dam - plaintiff' s expense . It is supposed , that ages . 2 Burrows , 1010 ; 1 Strange , 406 ; 2 though the covenants of seisin and for quiet East, 211. In the present case , the defendant enjoyment are distinct, and regard different covenanted that the plaintiff should quietly objects , yet that where the first fails, the lat enjoy the land sold . This covenant was vio - ter is merged in it. This principle strikes lated , when the plaintiff was evicted ; and he me as illogical , and unfounded in authority . has lost , by the breach of the covenant , not There are authorities (Freem . 450 , pl. 612 ; only the quiet enjoyment of the land , but the | 6 Vin . Abr . 426 , pl. 20 ; Id . 476 , pl. 4) which usufruct of those erections and improvements , show , that where , in a deed , a man covenants without which , it is fair to say , that the that he hath a good right to convey , & c. and land itself could not have been enjoyed , agree that the party shall quietly enjoy , one cove o the intention of the parties . It neces - | nant goes to the title and the other to the pos sarily follows, that had the defendant kept session . And why a person who has broken his covenant and allowed the plaintiff to en two distinct agreements , should protect him joy the premises sold , he would not have been self from a responsibility on both , and be deprived of those improvements made on the liable only on the least extensive one, sur thing itself , the making of which was an passes my powers of comprehension . A case inducement to the purchase . How it can be | has been mentioned as decided in the supreme called a severe doctrine to compel the vendor court of Pennsylvania (Bender v. Fromberger , to respond in damages for ordinary and neces 4 Dall . 436 ), as bearing on the present ; it will sary improvements , I confess myself incapa - | be found to have been on the mere covenant ble of perceiving , when he has undertaken , of seisin , and power , & c. to convey in fee . for a price paid , to assure to the vendee the The rule I have adopted meets that case , and validity of his title . Very often , and perhaps is reconcilable with it, for there the covenant 414 BREACH OF CONTRACTS RESPECTING REAL ESTATE . was broken as soon as it was made , and the be unreasonable and very inconsistent , for the damages then sustained were the considera - plaintiff to recover under one covenant the tion money and interest . whole value of the estate , as it was intended to be conveyed , and under another covenant KENT , C. J . The declaration in this case in the same deed , distinct and increased dam is upon two distinct covenants in the deed , ages , because he was not permitted to enjoy to wit , the covenant of seisin , and the cove that estate . These covenants must be taken nant for quiet enjoyment ; and the verdict in connection , to ascertain their import. The was taken for the plaintiff , subject to the covenant for further assurance is one of these opinion of the court, as to the rule of dam secondary covenants , and if the grantor bad ages . We must take it for granted upon this no title , and the value of the land was re case , and so it seems to have been understood | covered back by the grantee , he could not be and admitted upon the argument , that both called upon in damages for further assurance . covenants were broken , and the question , This would be very idle when it had been as then , is, what is the measure of damages , certained by the recovery under the principal when the two covenants are the subject of covenant that he had nothing to assure . If one action , and a breach of each has been the grantee recovers what is to be deemed , duly assigned and proved ? upon established principles , the value of the The case of Staats v. Ten Eyck 's Ex ’rs goes land , under the covenant of title , it amounts , very far towards a decision of this question . in effect , to a satisfaction and extinguishment That was a suit upon the same covenants , of the covenants relative to the possession , and a breach of both was admitted . The and the grantee cannot receive anything more point submitted was the rule of damages , than nominal damages under those covenants . " under the covenants mentioned in the deed ." There is no precedent to authorize any greater The court adjudged that the rule of damages recovery , under the covenant for quiet enjoy . was the consideration money and interest ; ment than under the covenant of seisin ; and and I observed , in giving my opinion in that the universal silence in the books on a point case , that the covenant for quiet enjoyment which so frequently gives occasion for liti could have no greater operation , as to dam gation , is a strong argument to prove that ages , than the covenant of seisin . Mr. Justice no such rule exists as that contended for by Livingston , who also gave his opinion , was the plaintiff . I believe it has never been the silent upon that point ; but it was a neces received opinion with us , that in a deed con sary consequence of the judgment of the court , taining the usual covenants , viz . the cove that the increased value of the land could not nant of title or seisin , and the covenant rela be recovered under either of those covenants . tive to the possession , the latter covenants , The doctrine that the measure of damages , in a case of no title , and consequently of a under the covenant for quiet enjoyment , is to breach of the covenant of title , would become be computed from the time of eviction , and to paramount covenants and afford a larger include the then value , even when the title claim for damages . The latter construction has totally failed , and the covenant of seisin would not only introduce a rule hitherto un broken , cannot possibly be reconciled with discovered in the common law of England ,

that decision . I do not wish , however, to but a rule of great moment in its immediate ;

consequences to community I rest my opinion in this case solely upon that the and must . is of im authority As the question great be thoroughly persuaded of the soundness of , ,

upon authority or portance I am content to re examine- it at the construction either ,

principle I to adopt it .

large . before can consent , ,

of damages What would be the rule under When therefore there is no authority for , a to in a covenant for quiet enjoyment if a breach such construction be met with the de , of that covenant was shown which did not cisions at Westminster Hall- and it appears , amount to a breach of the covenant of seisin to be repugnant to the natural and reasonable , , or if that covenant stood alone in a deed un interpretation of the covenants as found in , , in I accompanied with the covenant of seisin is connection the same deed must adhere , not a point at present before us . If how to the opinion which I gave in the case of , , , , ,

v . Eyck ' s ' rs ever it stood alone in a deed I should think Staats Ten Ex and which must , , as at present advised that upon a total fail from a view of that case have been also the , ure of title the damages would be the same unanimous opinion of the court . , , , , as in the covenant of seisin and no more for The case before us then resolves itself , the analogy is very close between that cove - | into this question What is the extent of the

nant and the ancient warranty . But when rule of damages on a breach of the cove

the covenant for quiet enjoyment follows a nant of seisin ? , covenant of seisin in the same deed the in Three points are submitted by the case : , , ap tent of the instrument taken together - ( 1 ) Whether the plaintiff can recover inter , pears manifestly to be that the one covenant est on the consideration paid ? ( 2 ) Whether , is merely auxiliary to the other as the one he can recover for the increased value of , covenant relates to the title and the other the land ? And ( 3 ) whether he can recover

refers to the future enjoyment of that title . for his beneficial improvements ?

The covenant for quiet enjoyment respects The two first points were settled in the , , , the possession merely and it would seem to case of Staats v . Ten Eyck ' s Ex ' rs and need BREACH OF VENDOR' S COVENANTS . 415 not again be examined . Nothing has been it is laid down, that “ the question of dam shown which affects the accuracy of that de- ages , beyond the price paid , is with them cision on those points , and it deserves no | very arbitrary .” This is not consonant to tice as being of great weight in support of the genius of our law , nor does it recom that decision , that in the states of Massa - mend itself well for our adoption . On a chusetts and Pennsylvania , the same rule subject of such general concern , and of such of damages is established in an action for momentous interest , as the usual covenants the breach of the covenant of seisin . The in a conveyance of land , the standard for third point was reserved in the considera the computation of damages , upon a failure tion of the former case , and no opinion ex of title (whatever that standard may be ) , pressed upon it. It, therefore, remains open ought, at least , to be certain and notorious . for discussion . The seller and the purchaser are equally I must own that I never perceived any interested in having the rule fixed . I agree , ground for a distinction as to the damages , that the contract is to be construed , ac between the rise in the value of the land , cording to the intention of the parties; but and the improvements . There is no reason | I consider , that the intention of the cove for such a distinction , deducible from the 'nant of seisin , as uniformly expounded in nature of the covenant of seisin . Improve the English law , is only to indemnify the ments made upon the land were never the grantee for the consideration paid . This subject -matter of the contract of sale , any | was the settled rule at common law , upon the more than its gradual increase or diminution ancient warranty , of which this covenant in value . The subject of the contract was of seisin is one of the substitutes ; and all the land as it existed , and was worth when the reasons of policy which prevent the ex the contract was made . The purchaser may tension of the covenant to the increased val have made the purchase under the expecta ue of the land , apply equally, if not more tion of a great rise in the value of the land , strongly , to prevent its extension to improve or of great improvements to be made by ments made by the purchaser . A seller may the application of his wealth , or his labor . be presumed , at all times , able to return But such expectations must have been con - the consideration which he actually received ; fined to one party only , and not have en - but to compel him to pay for expensive im . tered as an ingredient into the bargain . It provements , of the extent of which he was the land and its price, at the time of could have made no calculation , and for the sale , which the parties had in view , I which he received no consideration , may and to that subject the operation of the con - suddenly overwhelm him and his family in tract ought to be confined . The argument i irretrievable ruin . The common law never in favor of the value of the land , and the left the vendor in such a state of uncertain improvements as they exist at the time of ty ; and it made no distinction between the eviction , has generally excepted cases of ex - | natural rise of the land , and its increased traordinary increase , and of very expensive value , by buildings , or other improvements . improvements. It seems to have been ad - | The feoffor was still to answer only for mitted , that, without such a limitation to the value of the land , as it was worth when the doctrine, it could not be endured . But the feoff ment was made. This was the this destroys every thing like a fixed rule amount of the decision in Yearbook 30 Ed . on the subject, and places the question of III . p. 14b . A man had a warship , and damages in a most inconvenient and danger granted it over , with warranty , and , after ous uncertainty . We have a striking illus - wards , the grantee was impleaded , and tration of this in the French law . The rule vouched the grantor . Now the wardship in France , upon bona fide sales, according was of more value at the time of the vouch to Pothier, Traité du Contrat de Vente , No . er , than it was at the time of the grant, 132 to No. 141 , is to make the seller, on with warranty , by reason of other lands eviction of the buyer , refund not only the descending , afterwards , or by buildings or original price, but the increased value of the otherwise , and it was held , that the vouchee land, and the expense of the meliorations could take protestation of this matter when made. He admits , however , that the in he entered into the warranty ; i. e. when he tention of the parties is to be the rule in the was admitted to defend , instead of the orig assessment of damages , and that, in the inal tenant. And Burton laid this down case of an immense augmentation in the for law , that if land be better after the price of the land , or in the value of the im feoffment made by buildings or otherwise . provements , the seller is to answer only for he who receives in value, receives but ac the moderate damages which the parties cording as the land was worth at the time could be supposed to have anticipated when of the feoff ment , and not more . The same the contract was made. It is plainly to be rule was laid down for law by Newton , J ., perceived , that there is no certainty in such in Yearbook 19 H . VI. p. 46a ; and again , in a loose application of the rule , and that it | 61a , and he says that it had been so ad leaves the damages to an arbitrary and un - judged , and he refers to the decision in 30 defined discretion , and so it appears to have Ed . III. which he said was not controverted . been understood ; for in the " Institution au This rule , upon the sanction of these author Droit François,” by M . Argou (livre 3. c. 23), | ities , has been incorporated , as good law , 416 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

into the Abridgments of Fitzherbert , Brooke, I of Staats v. Ten Eyck ' s Ex 'rs, it can make and Rolle . But the case of Ballet v. Ballet, no alteration in the covenant of seisin , Godb , 151, in the time of Jac. I., is a much | which , as to the rule of compensation , is more modern determination upon the same commensurate only with the ancient war point. That was a case of a writ of war ranty . rantia chartæ , and , upon demurrer, the I am , therefore , of opinion , in this case , court held , that if there be new buildings , that the sum allowed for the increased value of which the warranty was demanded , which of the land , and the sum allowed for in were not at the time of the warranty made, provements , be deducted from the verdict, and the deed is shown , the defendant ought and that judgment be entered for the resi not to demur , but to show the special matter, due only . and enter into the warranty for so much as making , was at the time of the of the deed THOMPSON and YATES, JJ., concurred . and not for the residue . Indeed , the point is too clear to admit of doubt , that the in Judgment accordingly . creased value of the land by buildings or other improvements , made no alteration , at NOTE . In Connecticut , Maine , Massachu , , common law , in the rule of damages ; and , setts and Vermont the value at the time of eviction controls . for the reasons given in the former case BREACH OF VENDOR 'S COVENANTS . 417

BROOKS V. BLACK . should not have allowed attorney 's fee paid in defending said action . (8 South 332, 68 Miss 161 ) . . . It is sufficient to say , in reference to the Supreme Court of Mississippi . Nov . 10, 1890. first assignment of error, that the facts do Appeal chancery , not support appellant 's contention . from court Noxubee assignment presents county ; , The second of error T . B . GRAHAM Chancellor . an interesting question which has never G . A. Evans and Brame & Alexander , for before been considered by this court , and , appellant . Bogle & Bogle , for appellee . so far as our researches have led , has not COOPER , J . This is a proceeding by often arisen in other states . That ques . attachment in chancery by the appellee , tion is , what is the measure of damages , in Black , against his remote vendor , Brooks , a suit by an evicted vendee , upon the cov . to recover damages for the breach of war enant of warranty of a remote vendor , ranty of title to certain lands . In 1869, running with land ? May he recover the Brooks conveyed the land , with covenants purchase price received by the remote ven of warranty , to one Spencer , the consider dor, or is he limited by the consideration ation being the sum of $6,296. Spencer exe he himself has paid ? It is supposed by appellant paid cuted a deed of trust, with power of sale , counsel for the that the sum to one Smith , to secure the payment of a by the evicted party - the value of the land debt of $400 to Graham , Black & Co . In at the time of his purchase - is fixed as the damages by September , 1878, the debt secured being un . measure of in this state the paid , the land was sold , as provided by case of White v. Presly , 54 Miss . 313. But question by the trust - deed , and at such sale Black , the the was not raised the record appellee , became the purchaser , at the in that case ; and although CHALMERS , J . , delivering price of $ 1, 000. Aiter his purchase , Black in the opinion of the court, de conveyed to Mrs . Spencer an undivided clares that the sum paid by the evicted par one -half interest in the land . Afterwards, ty , with interest , the same being less than the heirs at law of Mrs . Caroline Daves the sum received by the remote vendor , is damages , and Mrs . Neilson recovered in ejectment a correct measure of the decla . from Black and Mrs . Spencer the undivided ration does not thereby become decisire . one -half interest in the land , claiming iin In that case , Huntington had sold land , der title paramount to that of Brooks . to one Jones from whom the title had Brooks was not notified of the pendency passed under execution sale to Pressly . of this action of ejectment. Black , by the Pressly lost the land by reason of title par result of that suit, having lost the one . amount to that of Huntington , and sued half of his half interest in the land , (the Huntington ' s administrator on the cove one - fourth of the wbcle , ) seeks by the nants of warranty , and recovered in the present proceeding to recover from Brooks court below the sum he had paid at exe , , one -fourth of the consideration paid him cution sale and interest thereon the same by Spencer , and interest thereon , and the being less than Huntington had received . costs of defending the action of ejectment The administrator appealed . He, as ap against the heirs of Daves & Neilson , in pellant , could not assign as error the fact cluding attorney 's fees . The chancellor that damages less thau should have been found as facts that the title of the heirs of awarded had been given ; por could the Mrs . Daves and Mrs . Neilson was para . appellee raise the point here , that the judg mount to that of Brooks ; that the value ment he sought to maintain should have of the land at the time of eviction was been for a greater sum . The observation $6.000 ; and that Black , in good faith , and of the judge was not upon any question in discharge of a legal duty , had defended sought to be raised , or which could have the action of ejectment , and in so doing been decided , and therefore is not the de . had expended in court costs the sum of cision of the court . Among the first cases $ 249. 91, and the further sum of $ 200 for at in which the liability of a vendor to his torney ' s fees , which were reasonable . l'p vendee for breach of the warranty for on these facts . he decreed that Brooks quiet possession was considered were should pay to Black the sum of $1,500 , the Staats v. Ten Eyık , 3 Caines , 112, and same being the actual value of the land Pitcher v. Livingston , 4 Johns . 1. It was lost by Black , and less than one - fourth of contended for the plaintiffs in these cases the purchase price paid to Brooks by that the covenant was one of indemnity , Spencer , with interest at 6 per cent. from and therefore that themeasure of damages January 1, 1888, the date of Black ' s evic should be the value of the land at the time tion , and also the said sums of $ 219.91 and of the breach . In Staats v . Ten Eyck , re $ 200, the court costs and attorney ' s fees , covery was sought for the appreciation in with interest thereon from the commence the value of the land above the price paid ment of this suit . Brooks appeals and as by natural causes , and in Pitcher v. Lir . signs for error ( 1) that the court should ingston to recover above the purchase price have not made any decree against him , the value of permanent improvements put because the facts proved show that the upon the land by the vendee . The argu . debt secured by the deed of trust from ment for the plaintiffs was rested upon Spencer to Smith , trustee , had been paid the rule of damages in breaches of person at and before the sale under said deed ; ( 2) al covenants in other instances , but the that the measure of damages should be the court rejected the contention , and adopt one- fourth of the purchase price paid by ed , by analogy , themeasure of damages Black , and not the one -fourth of the value applied in the common -law action of war of the land at the time of eviction , por the rantia chartæ , and in suits for the breach one -fourth of purchase money received by of the covenant of seisin , viz ., the value Brooks ; ( 3) the court should not have al . of the land , determinable by the price paid lowed the court costs expended in defend the vendor ; and , since the vendee was ing the action of ejectment ; ( 4) the court liable to the real owner for mesne profits , LAW DAM .3d Ed . - 27 418 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

he was also entitled to interest on the pur - , that the plaintiff could not recover on the chase money for the time for which such warranty of a remote vendor more than mesne profits might be recovered against he had himself paid to his iminediate ven him . The measure of damages established dor , and in support of this declaration cites in these cases has been so generally adopt - the following cases : Booker v. Bell ' s Ex 'rs , ed in other states as to have become al- | 3 Bibb , 175 ; Kelly v . Dutch Church , 2 Hill , most universal, and it would be superfluous 116 ; Bennet v. Jenkins , 13 Johns . 51 ; Han . to cite authorities in its support . It has Bon v . Buckner , 4 Dana , 253; Wyman v. been announced as the rule in this state . Ballard , 12 Mass . 304 ; Stewart v. Drake, 9 Phipps v. Tarpley , 31 Miss. 433 . We refer N . J . Law , 142 : Wilson v. Forbes , 2 Dev . 39 ; to the cases above not for the purpose of Pitcher v. Livingston , 4 Johns . 1. Wehave announcing the rule which applies as be examined these cases , and find all of them , tween vendor and vendee , for that is tuo except Kelly v. Dutch Church , to be suits well settled to admit of controversy , and by the immediate vendee , or his heirs at is conceded by counsel for appellant ; we law , against the immediate vendor , or his note them to show that the suggestion | personal representative . Kelly v. Dutch now made that the covenant is one of in Church was a suit by the assignee of the demnity was rejected by the court in the lessee against the lessors of his assignor . earliest cases . In a certain sense ,all “ coy. The trial court had awarded , as damages , enants " are for indemnity ; but tl: e sense the rent reserved in the lease ; thus, as it in which the word is now used , in argu seems to us , making the sum paid to the ment of counsel , that redress is to be af. lessors , and not that paid for the assign forded to the extent, and within the limit , ment, the measure of damages . But the of the actual loss sustained by the vendee , facts are not very clearly stated , and the in an action against his inimedia te vendor , case cannot be held to decide anything up it may be confidently asserted , is against | on the point. The question seems to have the overwhelming current of authority . been more fully examined upon principle In these cases , at least , the decisions are in the cases of Williams v. Beeman , 2 Dev . practically uniform that , regardless of the 483 ; Mette v . Dow , 9 Lea , 93, and Lowrance value of the land at the time of eviction , v . Robertson , 10 S. C. 8, than in any oth the recovery is measured by the value of ers . In Williams v. Beeman , the majority of the land at the time of the conveyance , the court thought that the remote ven lee which value is conclusively fixed by the was suing to recover his own damages , price paid by the vendee or received by the and not those of the first vendee , and vendor . Another proposition may be therefore should be restricted to the act. confidently stated as supported by an ual damages he had sustained . In Mette equally uniform current of authority , that y . Dow , the court compared the covenant the covenant for quiet enjoyment runs | to a penal bond , the recovery on which with the land , and passes to all subse- would be limited to the actual damages quent owners claiming in the chain of sustained by the party suing . The dis title . The purchaser of land gets , by oper . senting opinion of RUFFIN , J ., in Williams ation of law , not only the land , but also | v. Beeman , is , in our opinion , a complete the covenant of the first vendor , and that reply to this position . He says : " The as well where the covenant is by its words value at the time of the sale by the first to the vendee only , as where it is with vendoris themeasure prescribed . Itought him and his assigps . When we come how . to operate both ways . If the vendor be ever to the precise question now presented , not liable for more , he ought not to be for which is whether a remote vendee may less . I understand it to be admitted that, recover from the remote vendor the pur if his immediate vendee be evicted , he is chase money paid by the first vendee , or is still liable for that. I do not see why he limited to the amount paid by himself to should not be equally so to the assignee as his vendee , we find direct conflict in the his vendce . Does the assignment change decisions , and , so far as we have found the his covenant ? It runs with the land , and cases , they are nearly equal in number on he who buys the land buys the corenant . each side . In North Carolina , (Williams He gets the whole of it. But it is said that v. Beenjan , 2 Dev . 483 , ) Minnesota , the assignor in such case cannot recover (Moore v. Frankenfield , 25 Minn . 540 , ) from the first vendor more than the evict Tennessee , (Mette v. Dow , 9 Lea , 93 ; ed vendee gave for the land , because this Whitzman v . Hirsh , 87 Tenn . 513 , 11 S. W . is all the assignor would be obliged to pay Rep . 421 , ) and Maryland , (Crisfield v. the assignee , and therefore he has complete Storr , 36 Md . 129, ) it is held that such re indemnity . This is changing the rule es mote vendee can only recover what he sentially . It puts it upon the amount of has paid to his own vendor . On the other the loss , not the price paid . It would hand , it is held in South Carolina , (Low seem to me that whoever buys land with rance v. Robertson , 10 S. C . 8, ) Iowa , a covenant adhering to it takes it with all (Mischke v . Baughn , 52 Iowa , 528 , 3 N. W . the advantages it conferred on his as Rep . 543 , ) and Kentucky , (Dougherty V. signor . It is so in personal contracts , for inquire assignee Duvall, 9 B. Mon . 57 ,) that such vendee we do not what the of may recover thefull consideration received a bond gave for it . The obligor must pay by the defendant , the remote vendor . him the whole . ” This argument seems to Williams v . Beeman was decided by a di us unanswerable . It at least never has vided court, RUFFIN , J . , dissenting , and been answered in any case we have seen . Mette v. Dow (followed by Whitzman v. When it is conceded that ,by his covenant , Hirsli ) overruled Hopkins v. Lane, 9 Yerg . a vendor binds himself to return the pur 79 . In Cristield ". Storr , 36 Md. 129, the chase price he receives in the contingency court declares that it had carefully exam of a failure of the title conveyed , and that ined many authorities upon the point,and this obligation is assigned , by operation that the decided weight ofauthority was of law , to whoever may succeed to the BREACH OF VENDOR ' S COVENANTS . 419

title , it would seem to follow , as a corol. I covenantor , and interest thereon . We lary , that the recovery , by whomsoever readily perceive the justice of the rule by had, ought to be equal to the obligation . which the value of the land at the time of But, under the rule announced in Mary . the sale by him is accepted as the measure land , Minnesota , Tennessee , and North Car. of the liability of the covenantor ,und also olina , the obligation of the covenantor is that the price paid shall be taken as con variable , and dependent upon transactions clusive evidence of that value . We also with which he is not connected . In these appreciate the fairness of allowing interest states, a man selling an estate to A . for on the purchase money as compensation $5 ,000 would be liable to pay A . that sum to the covenantee for so long a time as he if he should be evicted . But if A . sells the has been beld liable to the owner for mesne same land to B . for $500 , the liability of profits . But why costs in excess of the the first vendor is reduced to that suni, purchase money and interest have ever been and thus B ., the purchaser from A ., gets allowed we cannot conjecture . In 4 Kept , less than the obligation A . held . But if Comm . p. 476 , it is said : “ The measure of B . sells to C. for $5, 000 , the original obliga damages on a total failure of title , even on tion revives, and the absurdity is presented the covenant of warranty , is the value of of B . 's failing to get, and therefore to have , the land at the execution of the deed ; and what A . Owned , and still transferring to C. the evidence of that value is the consider . that which he never bad . The rule an ation money . with interest and costs . ” nounced in Kentucky , Iowa , anıt South How costs , which are uncertain in amount, Carolina is not only commended by its varying with reference to the character of justice , and by analogy to other well -set . the suit , the number of witnesses , and the tled principles , but possesses the advan nature of the issues presented in a pro tage of stability and uniformity . As we ceeding , could ever have been supposed to have said , it is quite generally held that , furnish any light upon the past value of by the covenant for quiet enjoyment , the lands , passes nur comprehension . But so grantor binds himself to pay , in event of it is that , by practically an unbroken cur failure of title , the then value of the land , rent of authority , the rule has been estab which value is determined by the price lished that they may be recovered in ad paid . Appreciation by natural causes , or dition to the purchase price and inter by improvements put upon the property est . Rawle, Cov . c. 9 ; Suth . Dam . 302 ; 4 by the vendee , does not enlarge his liabil . Ainer . & Eng . Enc . Law , 566 . Believing ity ; nor is it decreased by depreciation in that the rule allowing any costs should value from any cause. By legal intend - | never have been established , we decline to ment the obligation is as though the cov . extend it beyond the limits of the taxed enantor should say to the covenantee : costs of the case . Attorney ' s fees have “ You , or the person succeeding to the been allowed in some states , and disal. title Iconvey , shall hold the land , or if you lowed in others . The contlict in these de cannot, by reason of title in another , the cisions will be found in the cases cited by money I have received shall be restored in the text writers , and the Encyclopedia , lieu of the land . " We are unable to per abore referred to . Constrained by author ceire any principle upon which this obliga ity to allow the taxed costs , we return to tion shall be diminished because of the correct principles at the first point at price , in consideration of which it may be which we may do so , and hold that the assigned . We therefore conclude that the attorney ' s fees paid by the covenantee are obligation of the covenantor is the same not recoverable on the covenant of the to the assignee that it was to the cove grantor . In this cause , the court allowed nantee , and , being such , is governed by the the defendant an attorney ' s fee which , samemeasure of damages . added to the taxed costs and other dam The third and fourth assignments of er ages , exceeded the value of the land at the ror present the question whether taxed time of the sale , and interest thereon , and costs and attorney ' s fees in excess of the taxed costs . But , since the court also purchase price , and interest thereon , may erred in fixing the value of the land at $6 , be recovered on the covenant . We are 000 , its value at the time of eviction , in unable to discover any just principle upon stead of $6 , 296, the price paid to the de which costs , whether taxed or otherwise , fendant , both errors must be corrected to have been allowed to plaintiffs over and make a proper result . The decree is re above the purchase price received by the | versed , and decree here. 420 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

PHILLIPS et al. v. REICHERT. Motion for a new trial overruled . question presented is whether the (17 Ind . 120, 79 Am . Dec . 463.) The court adopted the correct rule as to the Supreme Court of Indiana . Nov. 29 , 1861 . measure of damages . The measure of dam Appeal from circuit court , Posey county . ages , it is evident , must be the same as if Conrad Baker and J . P . Edson , for appel the defendant were suing Graddy for a lants. Alvin P . Hovey , for appellee . breach of the covenants in his deed . It is well settled that where there is an WORDEN , J . Action by the appellants entire failure of title the measure of dam against the appellee upon a promissory note ages for a breach of the covenants , in the and to foreclose a mortgage , executed by absence of fraud , is the purchase money and Reichert to one Charles Graddy , and by the interest . Reese v. McQuilkin , 7 Ind . 450 . latter indorsed to the plaintiffs . It would seem to follow , as a corollary of The note was for $150 , and was given in this rule , that where the eviction is partial , part consideration for the sale of a certain the damages will bear the same proportion piece of land by Graddy to the defendant, to the whole purchase money as the value which was conveyed by deed of general war - 1 of the part to which the title fails bears to ranty . The entire purchase money was $600 , the whole premises , estimated at the price and the note in suit was for the last pay . I paid . This , accordingly , seems to be the set . ment . I tled rule . Rawle , Cov . Ed . 1860 ) p . 88 : Defense, that the defendant had been , Sedg . Dam . (3d Ed .) 175 ; Cornell v. Jackson , evicted from part of the premises by a para - ! 3 Cush . 510 ; Morris v. Phelps, 5 Johns . 19 ; mount title ; that he purchased the premises Giles v. Dugro , 1 Duer , 331 ; Wiley v. How expressly for the purpose of erecting a lager rd . 15 Ind beer cellar in a ravine on the part thereof But it is claimed that, inasmuch as the lot from which he has been evicted ; and that was purchased for a particular purpose , the part from which he has been ousted is which was known to the vendor , and as the indispensable to the trade and business of a failure of title to a part renders the prem brewer for such cellar; and that the lot is ises useless for that purpose , the case is not worth as much by $ 200 as the defendant ' taken out of the rule indicated . The counsel agreed to pay for the same, in consequence | for the appellee admits that there are no au of said ouster . thorities directly sustaining the position thus Issue , and trial by the court. Finding and assumed . We have looked , within a limited judgment for the defendant. range , for authorities upon this point, but The court found specially the following | find none . The absence of authority sus facts , on which the question here involved , .. taining the position is some evidence , at depends: least , that such is not the law . An analogy “ (2) That said lot, at the time of the pur is sought to be drawn from the rule that , chase thereof by the defendant from Graddy , where goods are ordered from a manufac had erected thereon a dwelling house , which turer for a particular purpose , there is an

is still on said lot ; and that one of the main implied warranty that they shall be fit for

objects for which the lot was purchased was the purpose designed . Such warranty may , that said defendant might erect a lager beer well be implied and yet furnish no analogy , cellar thereon which object was known to for settling the rule of damages on a breach

Graddy at the time of the purchase . of the express warranty of title contained in

“ ( 3 ) That since said conveyance the said the covenants of a deed . , , defendant has been evicted from the west | We think in principle the fact that land , , end of said lot by a paramount title the said was bought for a particular purpose which , Graddy not being the owner in fee of the was known to the vendor can make no dif , west end of said lot at the time of said conference in respect to the rule of damages for

veyance . a breach of the covenants . The purpose for , " ( 4 ) That the whole price or purchase which the land was bought does not enter , , money of said lot was $ 600 and that by into the covenants . They bind the covenant , reason of the failure of title to the west end or that he is seised of the land and that he , , thereof it is unfit for the purpose for which will warrant and defend the title or in de , , , , it was in part purchased and is therefore fault thereof that he will return the pur , , ;

to $ pur worth the defendant 200 less for the chase money and interest or if the title fail , pose purchased , for which he than the entire in part that he will return a ratable propor . lot would have been worth tion of the purchase money and interest . , “ ( 5 ) That the general value - - that is the The fact that the land was bought for a

Value for ordinary purposes - of that part of particular purpose cannot have the effect of

the lot to which the title failed as aforesaid increasing the liability thus imposed by the , , was $ 30 taking the entire purchase money covenants . If the land was sold in good , , , or $ C00 as the criterion of the value of the faith and without fraud the vendor sup . , . Whole lot posing he had title to the whole no reason “ ( 6 ) to a be The court therefore finds generally for is perceived why he should held . ” the defendant greater degree of liability on his covenants BREACH OF VENDOR' S COVENANTS . 421 than if he had not known the purpose to , to be the value of the part to which the title which the purchaser intended to apply it . failed , taking the purchase money as the cri. In the case of Diminick v. Lockwood , 10 terion of the value of the whole , was the Wend . 142, 155, it was said by the court , true measure of damages , and therefore that “ One ground assumed by Kent, when chief the court should not have found generally justice , in Staats v. Ten Eyck , 3 Caines , 111, for the defendant . and also by Chief Justice Tilghman , in Ben It should be observed , however , that per der v. Fromberger, 4 Dall . 414 , is this : " That haps the fifth finding of the court does not the title of land rests as much in the knowl- | furnish a strictly accurate basis for the as edge of the purchaser as the seller ; it de | sessment of damages . If the value of the pends upon writings , which both can exam part to which the title failed is less " for or. ine.' Again : 'It is agreed on all hands that dinary purposes " than it is for any particu . if fraud can be shown , or concealment , which lar purpose to which it is adapted and may would be evidence of it, that would consti be applied , - as, for instance , a lager beer tute a good ground of action , in which the cellar , - the basis is wrong . The basis should purchaser could recover all his damages .' ” be its relative , general value , compared with We have not examined the question wheth - | the whole , without limitation of the pur er the defendant might not, had he chosen poses to which it may be applied , or for to do so , have rescinded the contract on the which it may have value . failure of the title to that part which consti A new trial should be awarded . tuted the principal inducement to the pur chase ; out, whether he could have done 10so PER CURIAM . The judgment below is or not, we think the $30 found by the court reversed , with costs . 422 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

GREENVAULT V. DAVIS. ant's covenant ? On an express covenant of warranty or for quiet enjoyment in a deed , (4 Hill. [N . Y.) 643 .) it is settled that there must be a lawful eric Supreme Court of New York . May , 1843 . tion in some form before an action can be maintained . Waldron v. McCarty , 2 Johns. Exceptions from circuit court, Niagara ; Carpenter , ; county ; Dayton , Judge . 471 Kortz v. 5 Johns. 120 Kent v. Welch , 7 Johns. 258 ; Vanderkarr v. Van The action was on a covenant of warranty derkarr , 11 Johns. 122 ; Kerr v. Shaw , 13 contained in a deed of certain lands, dated Johns. 230 ; Webb v. Alexander , 7 Wend . April 5, 1836, executed by the defendant to 291 . And see Rickert v. Snyder , 9 Wend , one Daniel Price . The declaration stated 416 . But the rule is otherwise on the cove that the defendant, in consideration of $500 nant implied from the word " demise " in a to liiin paid , conveyed to Price in fee , with lease for years , and the lessee may have an covenant , etc.; that Price entered and was action he has been kept of possession possessed , and , being seised , he, on the 6th if out by one having a title superior to that of the of June, 1836, in consideration of $500 , con lessor , although there has been no eviction . veyed the property to the plaintiff in fee , who v. Taylor , Flob . 12 ; v. Clark , entered , etc . It was then averred that, be Holder Grannis 8 Cow . 36. But, as covenants can no longer fore the defendant conveyed to Price , the be implied in any conveyance of real estate (1 land was incumbered by a mortgage to one Rev . St. p. 738 , 8 140), the distinction which Lewis Blodget , which had been given by Da has been mentioned between cases upon ex vid Eddy while he was seised of the land ; press and those upon implied covenants has that after default in paying the mortgage ceased to be of any importance in this state . debt the land was sold to Blodget , on the There are some dicta in the books which 26th of October , 1839, by virtue of the power favor the opinion that there must be an evic of sale contained in the mortgage ; and that tion by process of law , but I have met with Blodget thereupon entered and took posses no case where the point was so adjudged . sion of the land , and expelled and dispos Greenby , , sessed the plaintiff . The defendant pleaded In v. Wilcocks 2 Johns. 1 the fact was mentioned by Spencer , J ., that there was ( 1) non est factum ; and (2) that Blodget did no averment in the declaration of an eviction not enter and expel the plaintiff , concluding by process ; , to the country . of law but so far as related to the covenant of warranty , the decision turned On the trial the defendant' s deed to Price upon the want of an allegation " that the was proveel and given in evidence , and Blod by any person having get testified that after he purchased on the ouster was committed right, or superior title ." Both of those facts foreclosure of the mortgage, and on the 1st should have been alleged . Kelly V. Dutch day of April , 1840 , he put one John Gill in Church , 2 Hill, 105 . In Lansing v. Van Al possession of the land as his tenant , and that stine , 2 Wend . 503 , note , Savage , C . J ., said Gill was still in possession and paid rent to " that, to constitute an eviction by a stranger , the witness . The defendant moved for a there must be a disturbance of the possession nonsuit on the ground that no eviction had under a para mount title by process of law .” been proved . The motion was denied , and But that remark was not necessary to the the defendant excepted . The defendant then decision of the cause . It was an action of offered to prove that the consideration mon covenant for the nonpayment of rent, and ey paid by Price (the plaintiff 's grantor ) to the defendant pleaded in bar an eviction the defendant was less than the amount ex from three - eighths of the premises by a pressed in the deed . The judge excluded the stranger ap evidence , and the defendant excepted . Ver . This made out a case for an portionment of the rent , but not a good bar dict in favor of the plaintiff for the consid to the whole action ; and that was the point eration money expressed in the deed , with decided . And besides , the pleas stated an interest . The defendant now moved for a eviction by due process of law , to wit , by a new trial on a bill of exceptions . judgment and writ of habere facias posses , plain H . R. Selden and E . J . Chase for sionem in ejectment . It is evident, there tiff . S. Stevens , for defendant . fore , that the question under consideration did not arise in that case. There are some BRONSON , J . As the premises were at other cases where an expulsion by legal pro the time unoccupied , the defendant 's deed of cess is mentioned , and some of the prece bargain and sale to Price carried the legal dents in pleading are that way , but the point seisin of the land , which subsequently pass seems never to have been adjudged . ed by the deed of Price to the plaintiff . And Upon principle I can see no reason for besides , the pleadings admit that the two requiring an eviction by legal process . grantees respectively entered and were seised | Whenever the grantee is ousted of the pos of the land . The only question is upon the session by one having a lawful right to the ouster of the plaintiff . Blodget , having a property paramount to the title of the gran paramount title, entered , and put Gill in pos- tor , the covenants of warranty and for quiet session as his tenant, who still holds the enjoyment are broken , and the grantee may land . Was that such an eviction as would sue. In Foster v. Pierson , 4 Term R. 617 , give the plaintiff an action on the defend - ! the declaration was upon the covenant for BREACH OF VENDOR ' S COVENANTS . 423 quiet enjoyment in a lease , and it was al- , the damages by proving that the considera leged for breach that a third person , hav- tion actually paid was $2,800 . Belden v. ing lawful right, etc ., entered and expelled Seymour , 8 Conn . 304 . This was held by the plaintiff . The defendant demurred on the three judges ; Bissell , J ., giving no opinion , ground , among others , that the declaration and Hosmer , C . J ., dissenting . There is one did not show an eviction “by, or in pursuance view of the question involved in these two of, or under any legal process of law ” ; but cases - and I have met with no other deci that point was abandoned on the argument , sion to the like effect - which was not no and judgment was rendered for the plaintiff . ticed by either of the learned courts , but See , also , 2 Saund . 181b , note 10; Ludwell which is , I think, entitled to a good deal of r . Newman , 6 Term R . 458 ; Hodgson v. weight. Whatever be the price actually paid Company , 8 Term R . 278 . In Hamilton v. for the land , the parties may enter into such Cutts , 4 Mass . 349 , the grantee voluntarily stipulations in relation to the title as they surrendered the possession to the rightful think proper . Covenants may be wholly owner without suit , and this was held a omitted , or they may be so framed as to en sufficient ouster to entitle him to an action on title the grantee to recover either more or the covenant of warranty . That decision less than he paid in case he shall be evicted . was approved by this court in Stone v. Hook When the deed contains no covenant but er , 9 Cow . 154. When the grantee surren that of seisin or general warranty , the con ders or suffers the possession to pass from sideration is not inserted as a mere matter him without a legal contest , he takes upon of form , nor for the sole purpose of giving himself the burden of showing that the per effect and operation to the deed ; but it is son who entered had a title paramount to inserted for the further purpose of fixing that of his grantor . But there is no rea the amount of damages to which the gran son why such surrender , without the trouble tee will be entitled in case he is evicted . and expense of a lawsuit , should deprive him ! Taking the consideration clause and the cov of a remedy on the covenant . The grantor is enant together , we find the agreement to be not injured by such an amicable ouster . On that, in case the title fails , the grantor will this contrary , it is a benefit to him ; for he pay and the grantee receive the particular thus saves the expenses of an action against sum specified in the deed ; and the one party the grantee to recover the possession . cannot be required to pay more, nor the oth It may be inferred in this case that the er to receive less , than that sum , without a premises were unoccupied , but the legal sei palpable violation of the contract. At least , sin was in the plaintiff . Blodget then enter such are my present impressions , though my ed and still holds the land by virtue of his brethren are inclined to a different conclu paramount title . This was an ouster or dis - sion . But it is not now necessary to decide seisin of the plaintiff , and he is well entitled the question . to an action on the defendant 's covenant . In both of the cases which have been men Was the defendant at liberty to show that tioned the question arose between the origi the consideration paid for the land by Price nal parties to the contract . The grantee was less than the sum expressed in the slied his immediate grantor . But here the deed ? I think not . That the consideration defendant' s grantee has conveyed to the clause in a deed is, as a general rule , open plaintiff , who has been evicted , and he sues to explanation by parol proof , has been fully as assignee on a covenant running with the settled in this and most of the other states . | land . And , whatever the rule might be if The cases on this subject were elaborately the question were between the original par , reviewed in McCrea v. Purmort , 16 Wend . ties to the deed , the defendant is not at lib

100 . But there are exceptions to the general | erty to set up this defense against the plain , , , , , rule and this case is I think among the tiff . The original parties knew of course

number . what was the true consideration for the , , , ; In Garrett v . Stuart 1 McCord 514 John - grant but it is not so with third persons . , , son J . said he was inclined to the conclu - They have no means of knowing what con

sion that evidence might be received to show sideration was paid but from what the par

that the consideration was either greater or ties have said by the conveyance . The de ; less than that expressed in the deed and a fendant covenanted with Price and his as , , similar remark was made by Parker C . J . 1 signs . When he inserted the consideration , , in Bullard v . Briggs 7 Pick . 533 . But the and covenant in the deed he virtually said

point decided in those cases has no direct to any one who might afterwards come in as

bearing upon the question now before us . assignee that he had received the whole , , , In Morse v . Shattuck 4 N . H . 229 the ac - $ 500 and would stand bound to that extent

tion was upon the covenant of seisin in a that the title should not fail . The plaintiff , deed which expressed a consideration of acted upon that assurance and parted with , , $ 900 and for the purpose of reducing the his money and the defendant should not . It

to gainsay damages the defendant was allowed to prove now be heard the admission

that the consideration actually paid was only is against good conscience and honest deal , , $ 100 . And in a like action where the con - ing to set up this defense and the defendant

sideration expressed in the deed was only is estopped from doing it . Welland Canal v . , , , ; , $ 1 800 the plaintiff was allowed to enhance | Hathaway 8 Wend . 480 Dezell v . Odell 3 424 BREACH OF CONTRACTS RESPECTING REAL ESTATE . , , , , I ’ ill 221 per Bronson J . This point was the assignee with the land it cannot be af , virtually decided in Suydam v . Jones 10 | fected by the equities existing between the , Wend . 180 . In that case the plaintiff sued original parties any more than the title to , as assignee on the covenants of warranty the land itself . ” And again " To allow a

and for quiet enjoyment in the defendant ' s secret agreement in opposition to the plain , to - ex deed one Sandford the consideration import of a covenant running with the land , , pressed in the deed being $ 2 500 - and the to control and annul it in the hands of a

plaintiff by of a had been evicted virtue | bona fide assignee would be a fraud upon , ,

mortgage $ 2 paramount for 000 which was such assignee which the law will not toler

to conveyed . the title which the defendant ate . " Although the plea was also thought , pleaded agreement be The defendant an bad upon other grounds I see no reason for

tween himself and Sandford , at the time the questioning the principle which has just ,

conveyance was executed that Sandford been stated .

should pay the mortgage as a part of the Many titles have been received upon the

money , , consideration for the land and that strength of covenants running with the land , in

the - covenants the deed should not be con and whatever may be the rule as between ,

as extending to mortgage . sidered the This the immediate parties to the deed it would

in saying only $ of was effect that 500 the work the grossest injustice to allow the cor

expressed in in deed go consideration the had enantor to into the question of how much ,

been paid plea . truth and the was held bad was actually paid for the land when the ti , ,

J . opinion of Sutherland who delivered the tle has failed in the hands of an assignee . , , said “ If passes to the court the covenant New trial denied . BREACH OF VENDOR ' S COVENANTS . 425

DELAVERGNE v. NORRIS . , cents , including what still remained due mortgages . (7. Johns . 358 , 5 Am . Dec . 281.) on the . The case was submitted to the court Supreme of New York. Feb., 1811 . Court without argument . This was an action of covenant . The plaintiff declared , on a breach of the several PER CURIAM . The verdict ought to be covenants contained in a deed , that the grant entered for the 1, 165 dollars and 14 cents or was well seized , & c., for the quiet enjoy only . If the plaintiff , when he sues on a ment of the grantee ; that the premises were covenant against encumbrances , has extin free from encumbrances , and that the de guished the encumbrance , he is entitled to fendant had good right and title to sell and recover the price he has paid for it . But if convey , & c. he has not extinguished it, but it is still an The cause was tried at the Dutchess cir outstanding encumbrance , his damages are cuit , in September , 1810, before the Chief but nominal, for he ought not to recover the Justice . value of an encumbrance , on a contingency , The deed containing the covenants was where he may never be disturbed by it. proved ; and there were several mortgages This is the reasonable rule ; for if he was to on the premises duly recorded , on which recover the value of an outstanding mort the plaintiff had paid the sum of 1, 165 dol gage, the mortgagee might still resort to lars and 14 cents ; and the sum of 835 dol the defendant , on his personal obligation , lars and 30 cents still remained due on the and compel him to pay it ; and if the pur mortgages, and unpaid by the plaintiff ; chaser feels the inconvenience of the exist but for which he claimed to recover . It ap ing encumbrance , and the hazard of waiting peared that the defendant was insolvent, until he is evicted , he may go and satisfy and wholly unable to pay any part of the the mortgage , and then resort to his cove mortgages . nant . This is the rule as laid down by the A verdict was taken for the plaintiff , sub supreme court of Massachusetts , in Prescott ject to the opinion of the court, whether | v. Trueman , 4 Tyng, 627 , and it is entitled the plaintiff was entitled only to 1, 165 dol- | to the highest respect . lars and 14 cents , or to 2,000 dollars and 44 Judgment accordingly . 426 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

RICHARDS v. IOWA HOMESTEAD CO . , 681. The history of the conflicting claims LUMPKIN v. SAME . TOD v. SAME . under these grants is familiar to the profes sion of this state , and need not be further (44 Iowa, 304 , 24 Am . Rep . 745 .) referred to in this opinion . The evidence Supreme Court of Iowa . Dec. Term , 1876 . in these cases established the fact that the plaintiffs acquired , purchases Appeal from circuit court , Webster coun had after their and entry thereunder upon ty . from defendant , paramount These are actions upon warranty deeds for the lands the title under the Des grant the breaches of covenants therein contained . Moines river . One holding lands under a deed of There were verdicts and judgments in all war ranty may, peril , acquire paramount the cases for plaintiffs . The defendant in at his a possession , each appeals . Similar facts and the same title in defense of his and in a proper action recover of the grantor in such questions of law are presented in each case , deed upon his covenants therein . Thomas v . Clark & Moulton and John Doud , for ap Stickle , 32 Iowa , 71 . The right of recovery pellant. Geo . Richards , J . D . Springer, and in such a case is limited to the amount of W . H . Johnson , for appellees . damage actually sustained by the grantee , which the authorities hold is the sum paid BECK , J. These cases, presenting sub for the paramount title, not exceeding the stantially the same facts and the same ques consideration of the deed upon which the tions of law , were submitted together , and action is brought. See Rawle , Cov . 280 - 284, will be disposed of in that way . and notes ; Galloway v . Finley , 12 Pet. 294 . The several deeds upon which the actions The rule has been recognized by this court . are respectively founded are in the form of Brandt v. Foster , 5 lowa , 287 ; Bailey v. Cor conveyances commonly used in this state . bett, 28 Iowa, 317 . The only covenant therein binds the grantor Plaintiffs ' counsel claim that the rule is “ to warrant and defend the title against only applicable to the case where the title to all persons whomsoever ,” which implies all a part of the land covered by the deed failed , the usual covenants in deeds of conveyance or when , for some other reason , the covenant in fee simple . Van Wagner v. Van Nos - of seisin is not wholly broken . But if there trand , 19 Iowa, 422 . be a total failure of title , and a total breach In each case the court instructed the jury | of the covenant , the measure of damages , that under the evidence the plaintiff was en - though the grantee has bought in the para titled to recover the consideration actually mount title , is the consideration paid for the paid by him to the defendant for the land , land , with interest . with interest . Upon the trials defendant The answer to this position may be brief . offered to introduce evidence showing the As we have seen , the grantee may protect sums paid by the plaintiff in each case to ac his possession by the purchase of the para . quire the paramount title to the land , it be mount title , and this is constructive eric ing shown that each plaintiff had acquired tion , which will enable him to recover upon such title . The evidence was excluded , the the covenant of the deed . Thomas v. Stickle , court holding that the measure of damages supra ; Rawle , Cov . 281 . The law will ren was determined by the rule announced in der him compensation in damages for the the instruction just referred to . The only loss he has sustained by eviction . It will question presented in the cases involves the give him nothing more than compensation . correctness of this rule of damages . That loss is the sum he paid for the para The defendant acquired title to the lands mount title . To the extent of the consid in question under the Dubuque & Sioux City eration paid for the land , which is the limit Railroad Company , which claimed them un of the grantor 's liability on his covenant , he der a grant of congress . The paramount ti may recover his loss in a proper action , tle is based upon the Des Moines river grant, The rule of law followed by the court be under which the Des Moines Valley Railroad low in the exclusion of the evidence offered Company finally acquired the land , the su and in the instruction given to the jury is preme court of the United States holding erroneous . that the title passed under the last- named ) The judgment in each case is therefore re grant . Wolcott v. Des Moines Co., 5 Wall. I versed . BREACH OF VENDOR 'S COVENANTS. 427

GUTHRIE V. RUSSELL et ux . | sideration paid is to be taken as the value of the property as between the parties . In (46 Iowa, 269 ) . that case , the court aimed to give full com Supreme Court of Iowa . June 14, 1877. pensation , thus following , to some extent , the rule adopted in Massachusetts and some Appeal from district court , Jasper county . other states , where the limit of recovery in Suit in equity by one Guthrie against an action for breach of covenant is the actual James H. Russell and wife to recover the value of the property at the time of eviction , amount plaintiff had been compelled to pay or at the time of the extinguishment of the to satisfy mortgage on lands conveyed to incumbrance . Yet, we cannot think that the plaintiff by defendants , with covenant of war court designed to depart altogether from the ranty against incumbrances . Judgment for other rule above set forth , which is in ac plaintiff , and defendants appeal. Reversed . cordance with the decided weight of author J . N . Lindley and R . A. Sankey , for appel ity , and which was expressly held by this lants . Ryan Bros ., for appellee . court, as we have seen , in Brandt v. Foster . We have no doubt that if, in Knadler v. ADAMS , J. In this case the deed con Sharp , the incumbrance paid off had exceed taining the covenant sued on conveyed an ed the purchase money and interest , the interest which was paramount to the incum plaintiff would have been limited in his re brance . That interest , it appears , was of the covery to that amount . value of $1,481.57. The amount necessary Under the decisions , then , of this court, to be paid by the junior incumbrancer to re the limitation imposed upon the covenantee 's deem was $1,681.57, but that covered im recovery must be regarded as placed more provements made by the plaintiff . What the upon the ground that the conevantor needs plaintiff bought of the defendants was worth , that protection than upon the ground that according to the evidence , about $200 less . the consideration paid is fairly the limit of The plaintiff then paid $1, 200 , and acquired compensation . an interest paramount to all others , worth In Staats v. Ten Eyck 's Ex'rs , 3 Caines , $1, 481.57 . To extinguish an incumbrance 111 , Mr. Justice Livingston said : “ To find junior to it, he paid , as we will assume , $378 , a proper rule of damages in a case like this or gave property of that value , and he now is a work of some difficulty . No one will claims to recover that amount from his cov be entirely free from objection , or will not enantors . at times work injustice. To refund the con Where real estate is conveyed with cove sideration , even with interest , may be a very nants of warranty , it has been held in actions inadequate compensation when the property for breach of covenant that the price paid is greatly enhanced in value , and when the by the purchaser and received by the seller same money might have been laid out to should be taken , as between them , to be the equal advantage elsewhere . Yet , to make value of the property . In Baxter V. Brad this increased value the criterion , where there bury , 20 Me. 260 , the court said : “ If the has been no fraud, may also be attended covenant of seisin is broken , as thereby the with injustice if not with ruin ." title wholly fails, the law restores to the Proceeding then upon the rule , as indicated purchaser the consideration paid , which is | in Knadler v. Sharp , that the covenantee is the agreed value of the land , and interest .” entitled to full compensation , subject only In Brandt v. Foster , 5 Iowa, 295, it was said : to the limitation needed by the covenantor " The measure of damages for breach of this for his just protection , we come to inquire covenant is the consideration money and in whether it will enable the plaintiff to recover . terest , upon the ground that this is the actual If the premises were of such value that he loss." In Field on Damages ( section 461) could better afford to pay the amount which the author says : " In an action for the breach he did and retain them than suffer a redemp of the modern covenant of warranty , the tion and eviction , he was, we think , justified general rule of damages in this country , in in doing so , and ought to be allowed to re the absence of fraud , is the value of the land cover of the defendant notwithstanding he at the time of the execution of the deed , of received and retains an interest paramount which the actual consideration is conclusive to the incumbrance of greater value than the evidence ." amount which he paid for that interest . In the state where this rule prevails . it is Further than that we think that law would held in actions for breach of covenants not justify us in going . It should always against incumbrances that the damages must appear that the amount paid by the cove be limited to the amount of purchase money | nantee was fairly paid , or that the incum and interest , although the amount paid to brance , if not removed , was one which sub remove the incumbrance might be much stantially affected the value of the property . greater , the value of the property as between Grant v. Tallman , 20 N . Y . 191. the parties being taken to be the considera The question then arises : Were the prem tion paid for it . ises of greater value than the amount which But, in Knadler v. Sharp , 36 Iowa , 232 , the plaintiff would have received upon re this court ignored the doctrine that the con - | demption before eviction ? The amount nec 428 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

essary to redeem had come to be nearly $2,- | sonable . We cannot regard the defendants' 000 . The amount paid by plaintiff to the covenant as extending further than that. defendant was $ 1,200 . As between the par It may be said that this rule does not af ties , we think that the consideration paid ford the plaintiff complete protection , - that should be taken to be at least prima facie possibly the incumbrancer was unreasonable ; evidence of the value. If the plaintiff claims but it should be borne in mind that the plain to recover upon the ground that they were tiff bought with constructive notice of the worth , not only more than that , but more incumbrance . If he was unaware of its ex than the amount which he would have re istence it was his own fault . Perhaps it ceived upon redemption , he should have would be fair to presume that he bought with shown it in evidence . We are not satisfied reference to it . At all events , it seems clear that the amount paid was fairly paid . If to us that while holding an interest under the premises were really not worth redeem his deed of greater value than he paid for it, ing , in other words if the incumbrance paid he cannot properly claim the right to pay off was really of no value , there is ground an unreasonable amount to remove the in for suspecting that there was collusion be cumbrance and to recover the amount thus tween the plaintiff and incumbrancer . Pos paid of the defendants . sibly the plaintiff would have been justified In Knadler v. Sharp , it seems to have been in paying something for the extinguishment taken for granted that the amount paid was of the incumbrance , even if it had no value , I reasonable . There is, therefore , nothing in but in such case it would be incumbent upon the decision in that case which necessarily him to show that the amount paid was rea . I conflicts with this . Reversed . BREACH OF LANDLORD ' S COVENANTS . 429

POPOSKEY v. MUNKWITZ . | al value of the leased store for the term of the lease is at least $2, 000 more than the rent . (32 N. W . 35, 68 Wis . 322.) thereof reserved in the lease . The closing Supreme , Court of Wisconsin . March 1 1887. paragraph of the complaint is as follows : Appeal from circuit court , Milwaukee coun " That, by reason of the premises , plaintiff 's ty . said business has been broken up and de * The action is by a lessee against his lessor stroyed , and his trade and custom gone , and for failure of the latter to give the lessee his stock of goods purchased to carry on his possession of the leased premises according business at said store so leased has become to the covenants in the lease . Under date of greatly depreciated and destroyed in value , October 22 , 1884, the parties executed an in and plaintiff has lost the profits which he denture of lease in and by which the de would and could have made in continuing fendant leased to the plaintiff his store , No. and carrying on his aforesaid business at 411 Broadway, in the city of Milwaukee , said leased premises since said fifteenth day from November 15, 1884 , to May 1, 1890, at of November , 1881, had said leased premises a yearly rent therein reserved , and therein been surrendered and delivered up to him as covenanted that , on paying such rent , and agreed by defendant, and his said leasehold performing the conditions contained in such interest in said premises been lost and de lease to be performed by him , the plaintiff stroyed , to the damage of plaintiff in the sum should have the quiet and peaceful posses of five thousand dollars .” Judgment for $5, sion of the leased premises during such term . 000 and costs is demanded . The answer de The defendant was unable to give the plain nies in detail each of the above averments , tiff the possession of the leased store be except that the defendant owned the store cause he had theretofore leased the same to No. 411 Broadway, and executed a lease Wilde & Uhlig for three years , commencing thereof to the plaintiff as alleged in the com May 1, 1883, and Uhlig was lawfully in pos plaint. session thereof under such lease when the The controversy on the trial was confined plaintiff 's term under his lease commenced , to the question of damages . The plaintiff and so continued in possession thereafter . offered testimony for the purpose of proving The plaintiff paid the defendant rent until the special damages stated in the complaint , December 1, 1884, at the execution of the but the same was rejected , and the judge lease , being $41.67, as stipulated in the lease , held that the measure of the plaintiff ' s dam and performed all his covenants therein con ages is the difference between the rent re tained . The plaintiff also put some goods in served in the lease and the actual rental the store with the consent of the defendant , value of the store , together with the expense but was required by Uhlig to take them of removing the plaintiff 's goods (before men away . This involved an expenditure by the tioned ) from the store after the term of the plaintiff of $14.40 . It is averred in the com lease commenced , and confined the testimo plaint that, for 12 years before the making ny to those elements of damages . Only a of the lease first above mentioned , the plain single question was submitted to the jury , tiff had carried on , in the city of Milwau which is as follows : "What was the actual kee , and for the last five years in the vicinity value per annum of the premises 411 Broad of the leased store, a wholesale and retail way , Milwaukee , described in the lease from business in pictures, picture - frames, and ar defendant to plaintiff , from and after No tist's materials , and in manufacturing pic vember 15, 1884 ?" The jury answered $ 1, ture - frames , and had a very large and lucra 200 . The rent reserved in the lease until tive custom and patronage established in May 1, 1887, is $1,000 , and $1, 200 thereafter . said business ; that he leased the store No. On April 5, 1886, the court gave judgment 411 Broadway for the purpose of carrying on for the plaintiff for $272 . 14 damages , and for and continuing the same business therein , of costs of suit. It is recited in the order for which the defendant had notice ; that such judgment that the plaintiff admitted he went store was especially well located , and adapt into possession of the leased store March 1, ed to the requirements of plaintiff ' s said 1886 . It is understood that the judgment is business ; that, relying upon having posses made up of $ 200 per annum (being the ex sion of the leased store at the stipulated time cess in the value of the rent as found by the in which to carry on his business , he pur jury , over and above the rent stipulated in chased a large stock of goods adapted to the the lease ) from November 15, 1884 , to Marcu holiday trade , in December , which is the 1, 1886, and the item of $ 14.40 above men . most profitable trade during the year ; and tioned . The item of $41.67 paid defendant that he lost this trade by reason of his fail on account of rent was disallowed for the ure to obtain possession of the store. Also | reason (as stated by the court ) that the lease that, upon the refusal of the defendant to to plaintiff " assigned , by operation of law , give him possession of the store , the plain the premises during Uhlig 's term to Mr. Po tiff diligently endeavored , but without suc poskey , and he has the right to recover the cess, to obtain another store , suited to the re rent from Mr. Uhlig.” The plaintiff appeals quirements of his business ,and that the rent. I from the judgment. 430 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

Dey & Friend , for appellant. Jenkins , | not chargeable with notice , is now firmly es Winkler , Fish & Smith , for respondent . tablished in the jurisprudence of England by the judgment of the house of lords in Bain LYON , J. This action was brought to re v. Fothergill , L . R. 7 Eng . & Ir . App . 158 . cover damages for the failure of the defend As already observed , the rule prevails in sey ant to put the plaintiff in possession of the eral of the United States , including this store No. 411 Broadway , Milwaukee , leased state , under the limitations just mentioned , of by the former to the latter , at the time stipu good faith and excusable ignorance of the lated in the lease as the commencement of vendor of defects in his title . Indeed , these the term . It is substantially an action for a are scarcely limitations, but rather an inter breach of the covenant for quiet enjoyment pretation of the qualification " without contained in the lease . 1 Tayl . Landi. & Ten . fraud,” in the opinion by De Grey, C. J ., in $ 309 . This appeal presents for determina the principal case. The rule as it now stands tion the question , what is the true rule of has been applied in this state in Rich v. damages for a breach of that covenant in Johnson , 2 Pin . 88 ; Blossom v. Knox , 3 Pin . that case , in view of the facts proved and of 262; Nichol v. Alexander , 28 Wis . 118 ; Mes fered to be proved therein ? The rule is un ser v. Oestreich , 52 Wis . 684 , 10 N . W . 6, and doubtedly the same as in an action for a in other cases. breach of covenants for title in an absolute Under this or any other rule , the plaintiff conveyance ; that is to say , had the plaintiff is entitled to recover the consideration paid purchased the store No. 411 Broadway of the by him on account of the purchase . Hence , defendant, and taken an absolute convey in the present case, whatever may be the ance thereof , instead of a lease for five or measure of damages , the plaintiff should more years , under the same circumstances have recovered the amount he advanced for which existed when the lease was executed , rent, and interest thereon . The reason giv the measure of his damages for a breach of en by the circuit judge for excluding this the covenants for title in such conveyance amount from the plaintiff ' s recovery , to -wit, would be the same that it is for a breach of that he could recover the rent from Uhlig , the covenant for quiet enjoyment in the the tenant under the paramount lease , is con lease . 3 Suth . Dam . 147 ; Blossom y. Knox , ceived to be unsound . The plaintiff did not 3 Pin . 262 . Indeed , the covenant for quiet purchase a term subject to the lease of Uh enjoyment is one of the covenants for title in lig , but an absolute term ; and while he a conveyance . Rawle , Cov . 17. It is also might, perhaps , have treated his lease as an said to be “an assurance consequent upon a assignment of the rents accruing under the defective title . " Id . 125. prior lease , and collected the same from Uh The general rule of damages which ob lig , there is no rule of law which compels tains in England and many of our sister him to do so. Indeed , had he done so, it pos states for a breach of covenant for title was sibly might have operated as a waiver of first authoritatively laid down in 1775, in the any claim for damages for the breach of the case of the common pleas of Flureau V. covenant sued upon . Thornhill , 2 W . Bl. 1078 . The defendant The limitations of the rule of Flureau v. covenanted to sell the plaintiff a rent for a Thornhill , or rather the exceptions thereto , term of years issuing out of leasehold prem are well stated in 3 Suth . Dam . 149, as fol ises , but , without fault on his part, the de lows: “Where a lessor knows , or is charge fendant was unable to make good title there - | able with notice , of such defect of his title to . The plaintiff claimed damages for the that he cannot assure to his lessee quiet en loss of his bargain , but it was held that he | joyment for the term which such lessor as was not entitled thereto . De Grey , C. J., sumes to grant ; where he refuses , in viola said : " Upon a contract for a purchase , if the tion of his agreement, to give a lease , or pos. title proves bad , and the vendor is (without session pursuant to a lease , having the ability fraud ) incapable of making a good one, I do to fulfill , as well as where the lessor evicts not think the purchaser can be entitled to his tenant, - he is chargeable with full dam any damages for the fancied goodness of the ages for compensation , and the doctrine of bargain which he supposes he has lost.” Flureau v . Thornbill has no application . On Blackstone, J ., said : “ These contracts are this general proposition the authorities agree . merely upon condition , frequently expressed , In such cases the difference between the rent but always implied , that the vendor bas a to be paid and the actual value of the prem good title." The rule of the above case ises at the time of the breach for the unex has been much considered in both England | pired term is considered the natural and and this country ; and while its scope has proximate damages . Where the lessee is de been more clearly defined , and its applica prived of the possession and enjoyment un tion somewhat limited by later adjudica - der such circumstances , the lessor is either tions, the rule itself, as applied to cases in guilty of intentional wrong, or he has made which the vendor honestly believed he had a the lease , and assumed the obligation to as good title , but the title failed for some de sure the lessee' s quiet enjoyment, with a fect not known to him , and of which he was l culpable ignorance of defects in his title , or BREACH OF LANDLORD ' S COVENANTS. 431 on the chance of afterwards acquiring one . , and elaborate note on the rule in the princi In neither case has he any claim to favorable pal case, in which a great number of cases consideration ; and he is not excused , on the are cited and discussed , in 1 Sedgw . Dam . doctrine of Flureau v. Thornhill , from mak 218 - 234. These rules can best be stated by ing good any loss which the lessee may suf - a quotation from the opinion in the principal fer from being deprived of the demised prem case by Alderson , B . He says : "Where two ises for the whole or any part of the stipu parties have made a contract which one of lated term ." This quotation doubtless con them has broken , the damages which the tains a correct statement of the law acted other party ought to receive in respect of upon in all the states , as well in those which such breach of contract should be such as have adopted the rule in Flureau v. Thorn may fairly and reasonably be considered ei hill as in those which have not. ther arising naturally , i. e., according to the We are clear that this case comes within | usual course of things, from such breach of the exceptions . When the defendant leased contract itself, or such as may reasonably the store to the plaintiff , he knew that there be supposed to have been in the contempla was a valid paramount lease upon the prem tion of both parties, at the time they made ises, executed by himself to Wilde & Uhlig , the contract , as the probable result of the having 17 or 18 months to run after the com breach of it. Now , if the special circum mencement of the plaintiff 's term . There is stances under which the contract was actual . no claim that the former lessees had for ly made were communicated by the plaintiffs feited their lease . Indeed , the defendant aft to the defendants , and thus known to both erwards made an unsuccessful attempt to parties , the damages resulting from the evict them by legal proceedings for an al breach of such a contract , which they would leged breach of the covenants of their lease , reasonably contemplate , would be the amount occurring after the execution of the plaintiff ' s of injury which would ordinarily follow from lease . But it was held there was no breach . a breach of contract under these special cir Munkwitz v. Uhlig , 64 Wis . 380, 25 N . W . cumstances so known and communicated . 424 . These proceedings are in evidence . But , on the other hand, if these special cir Hence the defendant knew , when he leased cumstances were wholly unknown to the the store to the plaintiff , of a defect in his party breaking the contract , he , at the most , title which prevented him from assuring to could only be supposed to have had in his the plaintiff the quiet enjoyment of the leas contemplation the amount of injury which ed premises . He thus entered into the con would arise generally , and in the great mul tract on the chance of being able afterwards | titude of cases, not affected by any special to avoid , in some way , his lease to Wilde & circumstances from such a breach of con Uhlig , but having no legal cause for avoiding tract. For, had the special circumstances it. These facts deprive him of the protec been known , the parties might have specially tion of the rule in Flureau v. Thornhill , and provided for the breach of contract by spe bring the lease within the rule above quoted cial terms as to the damages in that case, from Sutherland. In other words, the case and of this advantage it would be very un is thus brought within the general rule just to deprive them .” which prevails in actions for breaches of con Another rule having its foundation in nat tracts , that the plaintiff shall recover the loss ural justice should here be stated . In any he has proximately sustained by reason of case of a breach of contract the party in the breach . jured should use reasonable diligence , and But, in order to determine what elements make all reasonable effort , to reduce to a of loss come within the general rule , it is minimum the damages resulting from such necessary to apply other rules of law to the breach . The necessary expenses incurred by particular case. In the present case (per him in so doing may be recovered in an ac haps in most cases ) the rules laid down in tion for such breach . This rule was early . the leading case of Hadley v. Baxendale , 9 laid down by this court in Bradley v. Den Exch . 341 , 26 Eng . Law & Eq. 398 , which ton , 3 Wis , 557, and has been followed since . have many times been approved by this court , For a full statement of the rule , and refer are sufficient. Shepard v. Milwaukee Gas ences to numerous adjudications sustaining light Co ., 15 Wis . 318 ; Hibbard v. W . U. it, see 1 Suth . Dam . 148. Under this rule, Tel. Co ., 33 Wis . 558 ; Candee y. W . U. Tel. when the plaintiff was informed that the de Co., 34 Wis . 471 ; Walsh v. Chicago , M . & fendant could not give him possession of the St. P . R . Co., 42 Wis . 30 ; Hammer v. Schoen store as he had covenanted to do , (which felder, 47 Wis . 455 , 2 N . W . 1129 ; Brown v. | information was received by the plaintiff No Chicago, M . & St. P . R . Co ., 54 Wis . 312 , 11 vember 7th , being eight days before the com N . W . 356, 911 ; Cockburn v. Ashland Lum mencement of his term ,) it became his duty ber Co ., 54 Wis . 619 , 12 N . W . 49 ; McNa to use all reasonable efforts to procure an mara y . Clintonville , 62 Wis . 207, 22 N . W . other suitable place in which to carry on his 472 ; Thomas , B. & W . Manuf' g Co . y. Wa- | business if the damages which otherwise bash , St. L . & P . R . Co., 62 Wis. 642 , 22 would result from the breach of the defend N. W . 827 ; see , also , Richardson v. Chyno - ant 's covenant would be thereby diminished . weth , 26 Wis . 656 . See , also , a very learned | We do not think , however, the plaintiff could 432 BREACH OF CONTRACTS RESPECTING REAL ESTATE . be lawfully required to take another store | also be a proper item of damages . (4) IL out of the vicinity in which he was doing the plaintiff could reasonably have procured business when he took the lease from the de - | another suitable store for his business , he fendant. By removing to a remote part of the cannot recover for damages to his business , city , he might , and probably would , to some because by leasing , and continuing his busi extent at least , have lost the good -will ofness in , such other store , he might have his business , which it is alleged he had car avoided such damages . (5) But knowing that ried on successfully for a series of years in the plaintiff hired the store for the purpose the vicinity of the store No. 411 Broadway. of continuing his former business therein , (if Neither was he required to take another he did know it,) and having executed the store not reasonably well adapted to his busi lease with knowledge that he could not put ness . the plaintiff in possession of the store at the From the foregoing rules , and the partial stipulated time because of his prior outstand application of them already suggested , we ing lease , the defendant took the risk of the think the following propositions are estab plaintiff being able to procure another suit lished : (1) The plaintiff is entitled to recov . able store for his business , the inability of er the sum he paid as rent when the lease the latter to do so would render the defend . was executed , and interest thereon ; and also ant liable for the damages resulting to plain the necessary expense of removing some of tiff ' s business by reason of the breach of his goods to the store , with defendant's con covenant complained of. This is plainly sent, and taking them therefrom after he within the rule of Hadley v. Baxendale, su failed to get possession of the store . (2) If pra , because , under such circumstances, the the defendant did not know , when he exe parties may fairly be considered to have con cuted the lease , the purposes for which the templated that the breach of covenant would plaintiff hired the store , or the uses to which necessarily destroy or greatly impair the he intended to put it, the measure of the value of plaintiff 's business . It should be plaintiff 's damages for breach of the cove observed that, if the plaintiff recovers for nant for quiet enjoyment (in addition to the damages to his business , he cannot also re special damages just mentioned ) would be cover the value of his lease under the above that adopted by the trial judge ; that is , the second or third proposition , because such difference between the rent reserved in the value is necessarily a factor in estimating lease and the actual rental value of the store , the damages to the business. Smith v. Wun

regard , , , , without to what it is used for which derlich , 70 Ill . 426 433( . ) He may however ,

jury to $ per . the fouud be 200 annum All | in that case recover the special damages ,

proximate damages re these are natural and mentioned in the first proposition for these

sulting from the breach . ( 3 ) If the defend are not such factors . , , ant then knew that the plaintiff was carry It follows that the testimony which was of ,

by plaintiff to in complaint ing on the business stated the fered the show that the de , and hired the store No . 411 Broadway for fendant knew when he executed the lease to , the purpose of continuing the same business the plaintiff that the latter was carrying on , , therein and if in the exercise of reasonable the business before mentioned in the same , , diligence the plaintiff might have procured vicinity and took the lease of the store for , another store reasonably well adapted to his the purpose and with the intention of contin , , , business and in the same vicinity that is in uing such business therein and that he was , , a location in which he could have preserved unable in the exercise of due diligence to , and retained substantially the good will- of find another store suitable for his business , , , his former business the rule of damages in was competent and should have been re , addition to the special items first above men - ceived . Further after the plaintiff makes a , tioned will be the difference between the rent prima facie case entitling him to recover for , reserved in the lease and the actual rental damages to his business proof should be re , , value of the leased store for the purpose of ceived under the pleadings to show the . carrying on such business therein . In such value of such business , case the actual rental value would ordinarily We agree with with Mr . Justice Paine in , , be measured by the amount of rent the plain Shepard v . Gas - light Co . 15 Wis . 318 that

tiff would be compelled to pay for another to ascertain the value of a business an in

store equally well adapted to his business . quiry as to the profits thereof is necessary .

If he could obtain another store for the same | Probable " value " and " net profits " are con , ,

applied to a . rent he was to pay the defendant or less of vertible terms as business Yet

in many gives damages course he would suffer no general damages the law cases for , , for the defendant ' s breach of covenant and breaches of contracts based on prospective , his recovery in that behalf would be con - | profits when they are fairly within the con , , fined to nominal damages in addition to the templation of the parties are not too remote , , special damages first above mentioned . If and conjectural and are susceptible of being , however the expenses of removing to an - l ascertained with reasonable certainty . If

other store would have been greater than the plaintiff shows himself entitled to re , they would have been in removing to the cover for damages to his business the char , , , store No . 411 Broadway such excess would I acter extent and value of his established BREACH OF LANDLORD ' S COVENANTS . 433 business when the lease was executed , and | 411 Broadway , there would be no basis upon before, will furnish a guide to the jury in as - which to estimate the prospective value of sessing the prospective and probable value the business which the plaintiff would have thereof, had the plaintiff been permitted to done there had he obtained possession , and transfer it to the store No. 411 Broadway . carried on the business therein . In such case , Carried on in the immediate vicinity of the profits would probably be too conjectural and Gld stand , and by the same person , presum - uncertain to be the basis of a recovery . ably the business would have been equally Some of the cases refer to this distinction . prosperous. This presumption may be re In Chapman v. Kirby, 49 Ill. 211, the court , butted by proof of facts and circumstances in speaking of the case of Green v. Williams, tending to show that the business would 45 Ill. 206, say : " In that case the lessee had probably have been less remunerative had it not entered upon the term , had not built up been so continued . or established a business , and had not suf It was said in argument that no case can be fered such a loss . There was not in that found which gives damages for the loss of case any basis upon which to determine anticipated profits , because a landlord fails whether there ever would be any profits , or to give possession at the time agreed upon . upon which to estimate them .” In the pres This is scarcely a correct statement . The ent case the offer was to prove facts which case of Ward v. Smith , 11 Price , 19, cited ! would have shown a sufficient basis to de by Mr. Justice Paine in Shepard v. Gas-light termine whether there would be profits , and Co ., supra , seems to be just such a case . It upon which they might be estimated . is conceded that if the plaintiff had not a For the errors above indicated , the judg business already built up and established in ment of the circuit court must be reversed , the same vicinity , which , with its good -will, and the cause will be remanded for a new could have been transferred to the store No. 1 trial. LAW DAM . 33 Ed .-- 28 434 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

COHN v. NORTON . less received the defendant's letter inform ing himn that the prior lease had a year and (18 Atl. 595 , 57 Conn . 480 .) five months longer to run . The evidence is Supreme Court of Errors of Connecticut . strong, if not conclusive, that he purchased Sept , . 13 1889 . his goods after that. If so , in no event has Appeal from court of common pleas , New he any legal or moral claim on the defendant , Haven county ; DEMING , Judge . But the great question is, what is the rule Action by Louis Cohn against Samuel L . of damages in cases like this ? Before consid brietly Norton , for damages for breach of contract ering that question we will notice an to deliver possession of premises leased to other claim that the defendant sets up , and plaintiff . Judgment for plaintiff . Defend . that is , that it was the duty of the plaintiff , ant appeals . at his own expense , to take measures to gain may G . A . Fay , for appellant . R . 8. Pickett , possession of the property . Whatever for appellee . be the rule when a stranger wrongfully takes and holds possession , the principle contended CARPENTER , J . On the 18th day of Au for can have no application where a person gust , 1885 , the defendant leased to the plaintiff holding rightfully under the lessor retains the a store and dwelling -house , for one year from possession . Nor are we prepared to sanction the 1st day of Sptember , with the privilege | the claim that in this case the defendant is of renewing the lease for three years , at a | only liable for nominal damages . We can monthly rent of $50 , payable in advance . | hardly say that a landlord who knows , or who One month 's rent was paid . The defendant has the means of knowing , that his property failed to put the plaintiff in possession . It is incumbered with an outstanding lease, appears that when the lease was executed the which may prevent his giving possession , property was in the possession of one Alex acts in good faith in leasing unconditionally ander , under a prior lease, with the right to to another . We come back then to the ques hold the same until February 1, 1890 . He tion , what is the rule of damages ? In Had refused to surrender the possession . In an ley y . Baxendale , 9 Exch . 341, the rule is laid action to recover damages the plaintiff down thus : “ Where two parties have made claimed to recover the sum of $80 , amount a contract which one of them has broken , the paid to clerks for release from contracts , and damages which the other party ought to re the sum of $586 .35 , amount paid merchants ceive in respect of such breach of contract to take back goods bonght, and for deprecia should be either such as may , fairly and rea tion on the goods . The defendant objected / sonably , be considered as arising naturally to the introduction of all evidence upon either that is , according to the usual course of of these claims. The court admitted the evi things — from such breach of contract itself , dence , and allowed both items as damages . or such as may reasonably be supposed to Assuming that the plaintiff is correct in have been in the contemplation of both par his claim that these were , or might have been , ties at the time they made the contract , as legitimate items of damage , still we think the the probable result of the breach of it . " testimony was objectionable , unless it further This rule has been criticised somewhat , as appeared that the sums paid were reasonable , not being sufficiently definite ; but we appre and that the obligation to pay was entered hend that any difficulty of that sort has nec . into in good faith . The mere fact that the essarily arisen from the difficulty in applying plaintiff paid tem is not of itself sufficient the rule in given cases . It is not an easy to establish either proposition ; and it does matter , in many cases , to determine whether not appear that there was any other evidence a given result is the natural consequence of tending to establish them , or either of them . a breach of a contract, or whether it arose If the clerks employed by the plaintiff had from a matter which may reasonably be sup sustained no damage , or damage to a less posed to have been contemplated when the amount , or if the plaintiff was under no legal parties entered into the contract . Oftentimes obligation to pay , then the payment was in it is a question on which men ' s minds may reasonable . The same is true of the money well differ . In that case the plaintiff was the paid to the merchants . If these clerks were owner of a steam -mill. He sent the parts of hired after he knew of the lease to Alexander , a broken shaft by the defendant, a carrier , to it can hardly be claimed that the plaintiff a mechanic , to serve as a model for making acted in good faith . How that was , we are a new one . The carrier did not deliver the not told . It appears that he had full knowl | article within a reasonable time, by reason of edge of that lease on the 23d of August ; and which the plaintiff ' s mill stood still several it is consistent with every fact found that all days . In an action to recover damages the the clerks were subsequently hired . So , too , defendant pleaded by paying £25 into court . with respect to the purchase of the goods . The case went to trial, and the plaintiff had Four days after the plaintiff had actual a verdict for £25 more . A rule to show cause knowledge that Alexander could legally re was argued , and the court promulgated the tain the possession , August 27th , he wrote rule we have quoted . In that case it was the defendant as follows : " As I am now sito contended that the loss of profits was the di. aated , I am on the fence , it being high time rect and natural consequence of the defend for me to buy goods , and I don ' t know what | ant' s neglect . The court did not accept that to do about it . " On the same day he doubt - view , but placed its decision on somewhat BREACH OF LANDLORD ' S COVENANTS . 435

plaintiff different grounds . The court says : “ Now , I fendant contemplated that the would goods if the special circumstances under which the hire clerks and purchase under such contract was actually made were communi . circumstances as to incur heavy liabilities in cated by the plaintiff to the defendant , and case of failure for any cause. In no proper thus known to both parties , the damages re sense, therefore , was the defendant a party sulting from the breach of such a contract to those arrangements , had no interest there . which they would reasonably contemplate in , and had no right to interfere ; conse would be the amount of injury which would quently he cannot be held responsible . Again , ordinarily follow from a breach of contract if these liabilities were incurred after the under these special circumstances , so known | plaintiff knew that it was doubtful whether and communicated . But , on the other hand , he could have the store , as they probably if those special circumstances were wholly were , then , as suggested in a former part of unknown to the party breaking the contract , this opinion , they were incurred in bad faith , be , at the most , could only be supposed to and he assumed the entire risk . The En . have had in his contemplation the amount of glish rule , then , as we understand it, will not injury which would arise generally , and , in justify the measure of damages applied by the great multitude of cases , not affected by the court below . The rule we have been any special circumstances from such a breach considering prevails generally in this country . of contract ; for , had the special circumstances Closely allied to it is another principle , which been known , the parties might have especially has some application to this case , and that is, provided for the breach of contract by special that profits which are in their nature doubt terns as to the damages in that case , and of ful or uncertain cannot be recovered as dam . this advantage it would be very unjust to de ages in such cases . But this principle does prive them . " Thus the loss was attributed not exclude profits as such , but only those of to the failure of the plaintiff to inform the a contingent nature. If they are definite and defendant of the special circumstances , by certain , and are lost by reason of the defend reason of which he contributed to the loss ; ant' s breach of his contract , they are in some for, if the defendant had been fully informed , cases recoverable . An instance of this is the it may be assumed that there would have been case of Booth v . Rolling -Mill Co ., 60 N. Y . a prompt delivery , and consequently no un 487 . The plaintiff had contracted to deliver necessary loss , and because he was not so in to a railroad company 400 steel - capped rails formed the court held that he was not liable at a given price . The defendant engaged for special damages . The essence of the rule with the plaintiff to manufacture them , but seems to be that the defendant must , in some failed to do so . The plaintiff was allowed to measure, have contemplated the injury for recover the profits he would have made had which damages are claimed . If it was the he been able to deliver the rails . If a loss of direct and natural result of the breach of profits may thus be compensated , we see no contract itself , he did contemplate it ; but if reason why a direct loss of money may not the injury did not flow naturally from the be compensated . In either event, however , breach , but the breach combined with special the loss must be certain , not only as to its circumstances to produce it , then the defend nature and extent, but also as to the cause ant did not contemplate it, and consequently which produced it, and must be capable of is not liable , unless he had knowledge of the being definitely ascertained . In Griffin v. special circumstances . There may , however, Colver, 16 N . Y . 489 , the rule is thus stated : be cases, growing out of the present methods “ The broad , general rule in such cases is of business , in which a promise may be im that the party injured is entitled to recover , plied , from the nature of the transaction , or all his damages including gains prevented as , in is of the character the business which the well as losses sustained and this rule sub , , damages : to to prompt to party is engaged be and use ject but two conditions The

diligence in performance of the utmost the must be such as may fairly be supposed to

duty . In the undertaken such cases the law have entered into the contemplation of the , - will not require the party to be specially in parties when they made the contract that , , to formed but will deem him have contem is must be such as might naturally be ex , ; plated the importance of the business and pected to follow its violation and they must ,

responsible accordingly . hold him be certain both in their nature and in re . . " principles to they proceed Apply these this case The spect to the cause from which

store was hired for a clothing store . That Here we may concede that the loss sustained to seems to be all that the defendant knew was sufficiently definite and certain as the ,

it . request plaintiff to about He did not the amount but not so as to the cause from , purchase goods , hire clerks and nor was he which it proceeded . As we have already seen of

plaintiff so . probable advised that the would do While it is not that the violation the , ; on he may have supposed that the plaintiff contract caused these losses but the other , would make suitable preparations to OC hand the plaintiff himself needlessly sub ,

yet . cupy the store he could not know what jected himself to them , by

preparations necessary . may plaintiff were He have In an Illinois case cited the , , , needed no clerks or they may have been pre Green( v . Williams 45 Ill . 206 ) it was held , viously engaged and the necessary goods that necessary losses sustained might be re

may in possession . a have been then his As covered . The plaintiff ' s case will hardly , , matter of law it cannot be said that the de - stand that test . The failure is twofold - in 436 BREACH OF CONTRACTS RESPECTING REAL ESTATE . respect to the necessity for hiring clerks , and strictly to those cases coming wholly and ex . purchasing goods , in the first instance , and actly within it . In both those cases the cir also in respect to the payment of the sums cumstances are enumerated which will take paid . There is no finding, and the facts do cases out of the operation of the rule . They not sufficiently indicate, that there was any are so numerous as to well nigh abrogate the necessity for either. rule itself. In England the rule has been re Thus far we have assumed that the dam pudiated , and such actions are placed upon ages recoverable in this case are the same as the same footing with other actions on con in ordinary cases of breaches of contract . tracts . Williams v . Burrell, 1 Man ., G . & S . The defendant, however , contends that the 402; Lock v. Furze , 19 C. B . ( N . S.) 96 . rule in actions on covenants in leases , ex In this state the rule has not been adopted , press or implied , is that, where the plaintiff and we are not disposed to adopt it . We has paid no rent or other expense , only think it better to discard the rule , so as to be nominal damages can be recovered . Such a in a position to determine all such cases upon rule once prevailed . It was adopted in anal. the general principles applicable to other con ogy to actions on covenants in deeds of real tracts . In that way we think we shall be estate , and it now prevails to a limited ex the better prepared to do justice in each case tent in the state of New York . Conger v . as it arises . Weaver , 20 N . Y . 140 . In that case DENIO , We suppose the correct rule to be that the J . , not regarding the rule with favor , with plaintiff is entitled to recover the rent paid , apparent reluctance considered that it was and the difference between the rent agreed too firmly established in that state to be dis to be paid and the value of the term , together turbed . In Mack v . Patchin , 42 N . Y . 167 , with such special damages as the circum . SMITH , J ., says : “ But this rule has not been stances may show him to be entitled to . very satisfactory , to the courts in this country Trull v. Granger , 8 N . Y . 115. The theory and it has been relaxed or modified more i upon which the court below assessed dam or less , to meet the injustice done to les - ages being inconsistent with these prin sees in particular cases . " In Pumpelly v. 1 ciples , the judgment must be reversed , and a Phelps, 40 N . Y . 59, it is declared that the new trial ordered . The other judges cone rule should not be extended , but limited curred . BREACH OF LANDLORD ' S COVENANTS . 437

HODGES v. FRIES et al. time of bringing her suit . The second count , alleges that subsequent to the making of

(15 South . 682, 34 Fla . 63 . ) , the contract for the half of said store ap ,

Supreme of . 22 . Court Florida June 1894 pellees offered to rent to appellant the entire ,

$ 50 per year Appeal from circuit court , Duval county ; store for month for one and given option taking , she was the the entire James M . Baker Judge . of

at any repairs

by store time before the then Action Sarah J . Hodges against A . P . ;

being on it completed

, made were that before Fries & Co . Judgment for defendants and , , repairs completed to on the plaintiff appeals . Affirmed . said were wit , , 1st day of April 1889 appellant decided to , , Mrs . Hodges the appellant sued A . P . take the entire store on the terms mention , , , J .

W . ed so appellees Fries and Morrison as partners doing and informed who then , to business under the firm name of A . P . Fries and there refused let her have said store , ,

& in or in part . damages of Co for for the breach an al whole and then informed her

they to leged rental contract . The declaration filed that had rented the entire store in

parties . of to the case contains two counts . The first other By reason the failure ob , , , , in

alleges possession of it is one substance that appellees on tain the said store al , ,

day of the 27th February 1889 contracted leged that appellant was damaged in the , , , to to - of $ 5 on rent appellant one half of a store num sum 000 for the reasons and the ,

41 Bay

in grounds in of bered East street the city of Jack set forth the first count the , , sonville to be used and occupied by her for declaration , , one year from the 15th day of March 1889 A demurrer to so much of the specifica , of $ for the sum 35 per month and that ap tions of damages in the declaration as are

pellant on said date demanded possession based upon the claim for loss of profits was , , , of of the half said store and possession of sustained and appellees filed two pleas one postponed by denying making the same was appellees on the the of the contract for the

pretext that the said store was being repaired rent of either the half or the whole of the , up , alleged as alleging and fitted for her use and soon as said store as and the other

said repairs were finished , which would be that appellant , after entering into negotia ,

early day possession of of | of or at an the half tions for the rent the whole half of the ; , said store would be delivered to her that | said store declined and refused to take a

appellant was delayed from time to time | lease of either . The declaration was subse , until the 15th day of April following when quently amended by repeating in substance

she was refused possession of the half of the allegations of the original as to the cou , , said store by appellees who then informed tract for the rent of the said store room they of

appellees to her that had rented the entire store to and the refusal comply with , other parties . The damages sued for are their said contract and alleging damages , , , . : $ 5 000 and the alleged causes of the same as follows viz That appellant incurred ,

. : great expense are as follows viz That appellant broke and outlay of money in mor

up ing , a and abandoned lucrative millinery busi herself and family consisting of several , , , ,

in young dependent ness which she was engaged in Lake City children from Lake City , , , .

a large Fla and moved and valuable stock | Fla . where they had resided for many years ; , to

of goods to millinery Jacksonville and also Jacksonville the cost and expense of sup , moved herself with her large and dependent porting appellant and her children , during , , of to

family place waiting to get children the latter on the time she was possession , , of of

of upon | the faith said contract and relying the half said store amounting to the ; of of $ promise appellees to give posses the her sum 500 the cost and outlay of money in

freight on sion of the half of said store on the 15th day the shipment of a large stock , , , of of

millinery goods of March 1857 when and where she could re value the sum of , , , , $ 5 sume her business she having good prospects 000 from Lake City to Jacksonville and , , of a compensatory spring trade out of which in money paid for drayage packing and stor

ing goods , as of she had every reason to have expected to said well as loss goods and , , , , make a large sum of money to wit $ 5 000 other legitimate expenses and losses in and , all of which protits and gain she lost in con about the removal of said stock of goods in

sequence of of appellees to the failure let and and about the keeping of the same ; appellant have the half of said store and preparatory to appellant ' s going into said , . appellant incurred further loss and damage store It is further alleged that appellees

in consequence of the violation of said con well knew when they entered into said con , tract in the unnecessary expense in breaking tract that appellant was engaged in the mil , up her business in Lake City and having linery business in Lake City and by said , to support her family in Jacksonville with contract they induced her to break up and , , |

in City out being able to engage in business be abandon said business Lake which , , , tween the 15th of March 1899 and the it is alleged was lucrative and paying and

day , 15th of April following she being led move her said business and stock of goods , to

to appellees by to believe from assurances from Jacksonville promising rent to her , that she would soon get possession of the one half- of said store and to deliver posses , , half of said store whereas she had not been sion of the same at the time mentioned for

able to resume her said business up to the the purpose of resuming her said business 438 BREACH OF CONTRACTS RESPECTING REAL ESTATE . in Jacksonville . It is also alleged that ap - | ried on in the premises refused are recovera pellant was not able to procure another ble as damages . Considering the declaration store equally favorable to her business after in this light, as it has been presented , we appellees give possession refused to her of will pass upon the correctness of the court ' s the one she had rented , or during the time ruling thereon . she was waiting to get possession of the The primary object in awarding damages same. at common law is compensation to the in particulars The bill of filed with the amend jured party , and the damages allowed for moving ed declaration consists of: Cost of this purpose must be the natural and proxi appellant family City and from Lake to mate result of the wrong done . In cases of , support family Jacksonville and for of while breach of contract , with few exceptions , the waiting to get possession of store, $500 ; cost common -law rule aims to give compensation of moving stock of goods, freight, drayage , for the loss sustained , and to put the injured loss of goods, including storage , $1,000 ; in party in the same condition in which he goods , terest on value of $500 . would have been had the contract been per On the issues presented by the pleas men formed . As between vendor and vendee , when , , tioned the case was tried before a referee the former fails to perform his contract of judgment appel who rendered in favor of sale and conveyance of real estate , by reason , lant for $5.50 and costs from which she has of his inability , without fault, to make title , appealed . an exception to the general rule as to award . , ing damages early established Flureau Cooper & Cooper , for appellant . H . Bisbee was , v . Thornhill 2 W . . 1078 . It was there es for appellees . Bl

tablished that in such cases the vendee could , , MABRY J . after( stating the facts ) . The recover only the amount of payments made . first error assigned and presented here in be with interest and costs The rule established

to extensively half of appellant is that the court erred in by the case referred has been , country , though in sustaining the demurrer to that part of the followed this some courts

claiming damages sup , departed it . declaration for loss of it seems have from Efforts have

applied to posed profits from trade . Counsel for appel been made to have the same rule

plain . | of lant say that " the declaration and the the violation rental contracts between theory tiff ' s joinder in demurrer show that the dam landlord and tenant on the that the of an ages of alleged profits in pro

a purchaser is claimed for loss | latter tanto interest in .

proposition in trade were based on the legal real estate The rule established Flu general v . that where a store is rented for the purpose reau Thornhill has not met with , ,

no disposi of in to a trade and which resume business | favor and the courts have shown , already under way which necessarily enters tion to extend it beyond the facts of that case . , into the contemplation of the parties such In England this rule has not been applied as , loss of trade forms a ground of damages if between landlord and tenant where the for , ; , of in proven the basis of proof being what she had mer violation his contract has withheld

annually realized net before the breaking up possession of the leased premises from the , , of[ the business ) . " latter and the general rule that the measure

only to in We can look the declaration de of damages is the loss a plaintiff has proxi , of by of termining its sufficiency on demurrer and mately sustained reason the breach , ' s in what is stated in the joinder in demurrer to the defendant contract obtains such , ; the declaration cannot affect its allegations cases . Lock v . Furze 19 C . B . ( N . S . ) 96 , on such issue . From the original declaration same case on appeal L . R . 1 C . P . 441 . In

we understand that appellant claimed as re - these cases it is said that the plaintiff was

damages profits good to coverable that she had entitled recover the value of the leased , reasons to expect from a millinery business premises for the term and also the expenses to

prevented or postponed by legitimately without cause the which he has been put in en

refusal of appellees to let her have the half deavoring to obtain it .

of the store room mentioned . The contract In New York and Missouri it has been held , , for the rent of the store and which it is al that when damages are claimed solely from , , of leged that appellees violated was executory the failure the lessor to give the lessee , ,

according to allegations of . and the the dec possession of the leased premises the plain , laration their action in the premises was tiff can only recover the difference between ,

. money paid on provided in without excuse No was the the rent as for the contract of , , , lease contracted for but a price was fixed lease and the rental value of the premises . , , ; and possession was refused without cause . Dodds v . Hakes 114 N . Y . 260 21 N . E . 398 , , Under such circumstances the tenant would Hughes v . Hood 50 Mo . 350 . is without doubt be entitled to recover the dif Our view that the general rule for award , ference in value between the price agreed on ing damages should apply in such cases and plaintiff generally and the rental value of the room at the time the should be allowed to re of of the breach the contract . The original cover the difference between the rent reserved

declaration claims more than that as dam and the value of the use of the premises for

ages . The feature of it demurred to asserts the term . If other damages result as the di

that the profits which the tenant had good rect and necessary or natural consequence of , reason to expect from the business to be car - | the breach of the contract by the defendant BREACH OF LANDLORD 'S COVENANTS . · 439

we do not see why they cannot also be recoy . , and Sullivan v. McMillan , 26 Fla . 543 , 8 ered , provided they are capable of being esti - South . 450 , are authority for the admission of mated by reliable data . Ward v. Smith , 11 | evidence as to the loss of profits in a suit for Price, 19; Brigham v. Carlisle , 78 Ala . 243 ; a breach of contract where they are suscep Snodgrass v. Reynolds, 79 Ala . 452 ; Adair v. tible of estimation by satisfactory proof. Bogle , 20 Iowa, 238 ; Woodbury v. Jones , 44 Under the allegations of the declaration be N . H . 206 . fore us , the profits and gains supposed to In estimating damages , profits that are have been sustained by reason of the fail speculative or conjectural are not generally ure to commence the millinery business in regarded as elements . Such profits are re- i the store contracted for in Jacksonville are jected , not because there is anything in their too remote and conjectural to form an ele nature per se which demands their rejection , ment of recoverable damages for a breach of but in obedience to the well -established com the alleged contract . They are not suscepti mon -law rule that all damages recovered for ble of any satisfactory estimation by estab a breach of contract must be proven with lished data , as plaintiff had never engaged in certainty , and not left to speculation or con such business at that place . The cases of jecture . The rule on the subject is well ex . | Giles y. O' Toole , 4 Barb . 261, and Green v. pressed , we think , in the case of Brigham v. Williams, 45 Ill. 206, in both of which dam Carlisle, supra , as follows, viz. ; " The law ages were claimed for profits which might presumes that a party foresees the natural have been made in the millinery business in and proximate result of a breach of his con . | the premises withheld , decide that they could tract or tort, and hence these are presumed not be recovered , because they were too re to be in his legal contemplation . For such mote and speculative . 1 Sedg. Dam . 183. damages , as a general rule , the party at fault The other assignments of error relate to the is liable . But there are damages which are findings of fact by the referee , and his con in the contemplation of the parties at the clusions as to the law applicable to the facts . time of making the contract, and are the nat . The referee found from the evidence that ap ural and proximate results of its breach , pellant and appellees entered into a contract which are not recoverable . The parties must whereby one-half of the store mentioned in necessarily contemplate the loss of profits as the declaration was to be occupied by the the direct and necessary consequence of the former for one year, and that possession was breach of a contract , and yet all profits are to be given to her as soon as the repairs then not within the scope of recoverable damages . being placed on the store were completed ; that There are numerous cases , however, in which said contract was entered into after appellant profits constitute , not only an element , but moved with her goods to Jacksonville , but be the measure of damages . While the line of fore the removal of the goods to rooms of demarkation is often dim and shadowy , the appellees ; that the store was ready for occu distinctive features consist in the nature and | pancy about the 1st of April , 1889 , and appel character of the profits . When they form an lant stood ready to accept the store under elemental constituent of the contract , thei: the contract , but appellees refused to let her loss the natural result of its breach , and the have possession ; that at the time of said re amount can be estimated with reasonable fusal appellees offered to rent to appellant certainty , such certainty as satisfies the mind another store in the same locality , practically of a prudent and impartial person , they are | as good for the purposes of her business as allowed . The requisite to their allowance is the store contracted for , and for the same some standard , as regular market values , or rental price , and that she, without legal ex other established data , by reference to which cuse, refused to accept it ; and that the rental the amount may be satisfactorily ascertained . value of the store room contracted for , as . * . On the other hand , mere speculative it was when the contract was made, and profits , such as might be conjectured would when possession was refused , was $50 per be the probable result of an adventure , de month by the year , —the contract price , - and feated by the breach of a contract , the gains that there was no difference between the from which are entirely conjectural , and actual rental value of half of the store and with respect to which no means exist of as what appellant agreed to pay for it. The certaining even approximately the probable referee also found that appellant expended results , cannot under any circumstances be $5.50 in the removal of her goods from the brought within the range of recoverable dam depot in Jacksonville to rooms of appellees , ages .” Masterson y. Mayor , etc., 7 Hill , 61. and that this item was the only damages le It may be that profits , though not recover gally recoverable for the breach of the said able as such, should be allowed to be proven contract in some cases, as affording facts from which The conclusion of the referee on the facts a jury may properly estimate the value of the must, in our judgment , be sustained . On ap lease to the tenant ; but they should not be peal , the findings of a referee on the testi allowed for this purpose unless they form a mony are to be accorded the same consider constituent element of the contract , and the ation and weight as are given to the verdict amount can be estimated with reasonable cer - of a jury . McClenny v. Hubbard , 20 Fla . tainty from established data . The cases of 541 ; Broward v. Roche , 21 Fla . 465 . That Brent v. Parker, 23 Fla . 200, 1 South . 780, | is , where there is sufficient testimony to sus 440 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

tain the finding , it will not be set aside on Thus conclusion justified the exclusion by the appeal unless the testimony against it is so referee of any consideration of the amounts strong as to indicate that due consideration expended by the appellant in securing other had not been given to the entire testimony . rooms in different portions of Jacksonville , From a careful consideration of the cor in which to carry on her business , after she respondence between the parties before ap refused to accept the Simkin store. It is a pellant moved to Jacksonville , we reach the well -established legal rule, and of constant conclusion that it cannot be said that there application , that if a plaintiff , by reasonable was by said correspondence any completed exertions or care, could have prevented dam bargain as to the rent of either the half or the ages resulting to him by reason of the defend whole of the store room in question . That | ant' s wrongful acts , it was his duty to do so, there was an agreement about the 15th of | and , so far as he could have thus prevented March , 1889, after appellant moved to Jack - them , he cannot recover therefor . Adair v.

sonville , for her to have one-half of the Bogle , supra ; Dobbins v. Duquid , 65 Ill . 461 . , If appellant equal store room described in the declaration when was tendered on terms as

repairs being good a placed on the then it were com store room as the one she had con , , , pleted in locality is supported by direct and positive tracted for and the same she , , testimony and under the rule announced we had a right to decline it but she had no right

to damages are not authorized to disturb it . Upon such | claim as the increased rental ,

of in parts

finding it proper was for the referee to ex cost other rooms secured different , expenses of the city and the expenses attending the clude all costs and incident to the , . to move to Jacksonville and incurred before the removal the same

by , contract was made . Whether such costs and Under the facts found the referee there no expenses would be allowable as damages for was basis for the claim of supposed profits ,

might a . a breach of the contract had it been entered that have been realized from milli , . into before appellant moved from Lake City nery business in the store contracted for

Appellant expected to a and before such costs and expenses were in commence such busi , ,

in evidently curred we need not say . As such expendi ness the store and this fact was

tures had already been made when the con known to appellees . As found by the ref , , , ,

to open tract was entered into they did not of eree however the business was be , , ed store repaired at course enter into the contemplation of the when the was and that in parties in making the contract . time she was tendered another room the , ,

locality equally good as Appellant and one of the appellees J . W . same as the one she , go , to . such profits Morrison were the only witnesses who tes . was into Furthermore

entirely speculative , tified as to the value and desirability of the were and there was no

reasonably . store offered in lieu of the one she was to safe basis for their estimation , , being Appellant so have the one described in the declara had never before far as we , ,

engaged in in . tion Morrison testified that the store of know business Jacksonville

entirely a fered Mrs . Hodges was as good in every re and her business venture was new in . in , , place given spect as the one she wanted and says using one that For reasons the , ,

part of opinion profits his language that was far as desirability is first this such could , . concerned I should think that the Simkin | not be estimated and considered

Accepting of store ( the one offered ) was a more desirable the conclusions the referee , ,

on testimony store than number 41 East Bay as it is the the as correct which we must , , ,

do it appellant same size has a plate - glass front and is one follows that sustained no

damage by of door nearer the business center of the city . " substantial reason the failure

Mrs . Hodges denies that the Simkin store of appellees to deliver to her possession of the , was as desirable for her business as the one store described in the declaration and that , , , she was to have but she does not deny that she has shown none by her testimony for , the two stores were in the same locality ad - which she is entitled to a recovery beyond , joining or near each other and of the same that awarded by the referee .

structure and size . No difference in pecuni . We may add that the question of the effect

ary value is shown . It is clear that she was į of the statute of frauds would present & ,

by ap - difficulty to of offered the Simkin store then owned serious the right appellant to , , , pellees on the same terms as the other store ' recover on the contract alleged in this case , and on the testimony we do not feel author - but it is not insisted on and it is not neces to

finding of sary to ized disturb the the referee that consider it . , , the Simkin store was practically as good for The judgment upon the record before us ,

contemplated be it be the business as the other one should atfirmed and will so ordered . BREACH OF LANDLORD ' S COVENANTS . 441

KNOWLES v. STEELE . gesting that, if they could not agree on the amount of the rent, they should resort to an (61 N . W . 557.) appraisal of the property in accordance with Supreme , Court of Minnesota . Dec . 21 1894 . the terms of the lease . Plaintiff having re Appeal from district court , Hennepin coun fused to accede to the proposition , Mrs . ty ; Henry G. Hicks , Judge . Steele brought an action against him to re Action by Alfred H Knowles against cover possession of the property , in which Steele , ., for damages for breach Franklin Jr the court decided that the notice served on Judgment of contract . was rendered for de her husband was sufficient to bind Mrs . , plaintiff appeals tendant and . Affirmed . Steele , but that she was not bound by the George R . Robinson , for appellant. Kit proposition made by him fixing the rent; chel, Cohen & Shaw , for respondent . and in accordance with the stipulation of the parties to the action the court gave Mrs . MITCHELL , J. The following condensed Steele further time in which to appoint an statement of the facts will be sufficient for appraiser on her part, which she did . The the purposes of this appeal : In 1881, the two thus appointed by her and the present defendant , being the owner of the premises plaintiff , respectively , selected a third , and described in the complaint , executed a lease the three appraised the market value of the ( in which his wife joined ) to plaintiff for premises at $35, 000, on which basis the rent the term of 10 years at an agreed annual for the second term was fixed at $2, 100 per rent. This lease contained a covenant that annum , at which rate the plaintiff has since if the lessee should desire to continue the paid , whereas the rent, according to the lease for another 10 years he should have proposition of the defendant and accepted the privilege of doing so in the manner fol by plaintiff , would have been only $ 1,914 per lowing. Not less than three months before annum . This action was brought to recover the expiration of the original term the lessee damages for defendant ' s breach of his con should give to the lessors notice in writing tract fixing the rent on the basis of the as of his election to continue the lease for an ad sessed value of the property . No evidence was ditional term , and in such notice name and introduced as to the actual rental value of the appoint an appraiser on his part . There | premises , and , the ejectment suit between upon the lessors should appoint an appraiser plaintiff and Mrs . Steele being res inter alios on their part, and notify the lessee of such acta , nothing done or determined in that ac appointment. The two appraisers thus ap - tion is evidence against the defendant on pointed were to appoint a third , and the | that question . three so chosen were to appraise the leased The plaintiff contends that this is in the premises at their then fair market value , nature of an action for the breach of the "and thereupon , without any further act, covenant in the lease for the quiet enjoyment this lease shall thereupon be extended for of the leased premises ; that plaintiff had a the further term of ten years, upon the right to purchase his right of possession same terms and conditions as before , except from the true owner , and that his damages that the annual rent for such second term are what it cost him to secure this right,

agreed on shall be such sum as is equal to six per over and above the rent between . to of appraised centum such valuation . " In him and defendant The rule as the

1891 plaintiff seasonably gave defendant measure of damages attempted to be in

no application to . to written notice of his election continue to voked has the case Plain ,

' s quiet enjoyment a lease for second term and in such notice tiff under the lease has

appraiser . a nominated an on his part to ap not been disturbed He has secured sec

praise the property for the purpose of fixing ond term on the exact terms upon which he to it of the amount of the rent for the additional was entitled under the terms the ,

. complains of is if term . On receipt of this notice defendant lease What he that de ,

to perform sent plaintiff a written communication by fendant had been able and had , ,

performed a in which order to avoid the necessity of ap certain other contract he would ,

pointing on appraisers he proposed to fix the have obtained the extension better terms

to original

at 6 per rent for the extended term cent . on than he was entitled under the

. compelled to a the then present assessed valuation of the lease He was not take , , ,

property $ to it a . 31 000 Immediately on receipt second term at all still less take at

proposition greater of of this the plaintiff wrote to de rent than the actual rental value ,

premises . of notifying of fendant him his acceptance of the Therefore the measure his , , ,

it . damages if is to any is The fact was although unknown to he entitled the loss , , plaintiff that soon after the execution of the of his bargain viz . the difference between

agreed in accepted proposition of lease in 1881 the defendant had conveyed the rent the

premises , through the the medium of a third the defendant and the actual market rental , ,

party of premises to his wife from whom he had no au value the at the time this agree ,

. assuming thority to or accept make the proposition re ment was made Therefore that , ac

proposition of ferred to and shortly afterwards she wrote the the defendant and the , a

it by plaintiff notifying ceptance of plaintiff him that she declined to constituted bind , ,

sug . | ing plaintiff of be bound by the act her husband and contract still the was at most 442 BREACH OF CONTRACTS RESPECTING REAL ESTATE . only entitled , under the evidence , to nominal , ders it unnecessary to consider any of the damages ; and a new trial will not be grant other questions discussed by counsel Judg ed for a failure to assess nominal damages ment affirmed . where no question of permanent right is in . volved . Harris v. Kerr , 37 Minn . 537 , 35 N. GILFILLAN , O. J ., absent , on account of W . 379 ; Hill. New Trials , p. 572. This ren - | sickness ; took no parte BREACH OF LANDLORD ' S COVENANTS. 443

FISHER v. GOEBEL . appears to have been left to the jury under the instructions to say whether the covenant

(40 Mo. 475 . ) for the building of a wall had been complied , ,

Supreme of . Court Missouri March Term 1867 . | with and whether the plaintiff had sustained ; damage in consequence of a breach thereof

Error to St . Louis court of common pleas .

and the case will be considered here only on , . plaintiff in Glover & Shepley for error of the matter the damages . , , in & Krum Decker Krum for defendant Upon the facts of the case , we think the

error . instruction given for the plaintiff allowed a larger latitude and measure of damages than , ,

J . plaintiff HOLMES The had leased from the justice or the law of the case will warrant

premises " the defendant the called the Flora and that the rule given in the defendant ' s in , " on Garden situated the corner of Seventh structions should have been adopted . , , , . Geyer in street and avenue 1855 There was In Vivian v . Champion 2 Ld . Raym . 1125

a 15 or 20 deep on Geyer cut some feet ave it was said that the proper measure of dam , in ages nue and the lessor covenanted the lease in a breach of such covenants was what

at expense a that he would build his own rock it would cost to put the premises in repair . ; on wall and fence that side and the lessee This rule appears to have been slightly modi

to keep property in a covenanted the leased fied in some modern cases on covenants by , , ,

of repair . years state Some two after this tenants for repairs but as we conceive not

, parts by it by wall was erected fell down to the extent implied in this instruction for , . ; of . v .

plaintiff 9 the action the elements The defendant the Smith Peat Exch . 165 , , ;

upon to it was called rebuild but before this Penley v . Watts 7 Mees . & W . 601 City of

plaintiff prem , ; was done the abandoned the Worcester V . Rowlands 9 Car . & P . 739 , . ises and surrendered his lease Walker v . Swayzee 3 Abb . Prac . 136 . It has

plaintiff proceeds on assumption The the that been said to cover such damages as are direct

by , , of the covenant the lessor had been broken and immediate but not remote speculative or , , it of the falling down this wall and that be contingent damages or such as might have to re to to longed the lessor and not himself been avoided by the other party . Loker v . ,

it . appears to build The case have been tried Damon 17 Pick . 288 . It has been allowed to

theory , principal on this and the matters sub include such losses in addition to the actual of mitted for decision concern the instructions cost of repair as were necessarily sustained .

of damages the court on the measure during the periods required for making re

jury plaintiff , The were instructed for the pairs and some compensation for any loss of

upon proper of the basis that the measure the use of the premises whilst they were un

damages , was the difference between the rent dergoing repairs . Middlekauff v . Smith 1 . . and value of the leasehold premises with a Md 327 But we find no satisfactory au

good permanent standing , and wall and their thority for the position that the tenant in

in in they value the condition which were left such case may wholly neglect to make the , without such wall . necessary repairs himself allow his leasehold ,

' s predicated The defendant instructions were to depreciate in value or his business to be

upon the rule that only the actual damages broken up and abandon his lease , and then

resulting directly ' s from the defendant default claim for his damages the whole loss so in , in to to be relation the stone wall measured curred . The greater part of such damages as , ,

by it to to what would cost rebuild the wall these might have been avoided and are to be

gether any may ; with loss that have been sus attributed to his own fault and for that he

tained as the direct and immediate conse | must be content to bear the loss himself . ,

quence of insufficiency the of the wall and Thompson v . Shattuck 2 Metc . Mass( . ) 615 . , , of be . the breach the covenant could recovered As a general rule we think it may be said

The jury found a verdict for the plaintiff that the recovery must be confined to the ac , , , ,

$ 4 damages upon a for 750 and remittitur of tual damages which are the direct immedi . , , , $ 2 ' s a 375 the defendant motion for new ate or proximate and unavoidable conse

, judgment trial was overruled and rendered quence of the breach of the covenant . Sedg . . – . for the balance . Meas . Dam 195 199 , Under these covenants it might admit of The evidence shows that this wall might , serious question whether the plaintiff after have been rebuilt at a cost of some six or , he had accepted the wall without remon eight hundred dollars and we are inclined to , strance and safely occupied the premises for think that the plaintiff has recovered a larger , , two years was not bound under the corenant amount than he was justly entitled to claim , for repairs to rebuild the wall himself or at notwithstanding the remittitur . , least to put and keep it in a state of repair For these reasons the judgment will be re

charging the defendant with damages only for versed and the cause remanded . The other

the original deficiency of structure . But it I judges concur . 444 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

MYERS v. BURNS . 1 pair for the purpose in question was a useful one , that it was necessary , and that it was not (35 N . Y . 269.) extravagant. The charge of the judge , and finding jury , Court of Appeals of New York . 1866 . the of the under it are unes ceptionable . John H . Reynolds , for appellant. James The plaintiff also objects to the allowance , respondent Emott for . of damages , and to the rule of damages adopt ed , on account of the loss of the use of cer HUNT , J. This is an action for rent on a tain rooms through a defect in the flues of lease dated May 28, 1856, brought by the the chimney . It appears that during some grantee of the reversion against the assignee portion of the time , four rooms fronting on of the term . The present defendant went Hicks street were of no use to the defendant. into possession of the premises September When fires were kindled in them the fiues 20, 1856. would not draw , but the gas and smoke is The defense is a counter -claim , under a sued out into the rooms , rendering them un covenant of the landlord to keep the prem inhabitable. The court charged the jury ises in repair . There is also connected with " that the defendant was entitled to recover the covenant to repair , an agreement that of the plaintiff as a counter - claim , the dam if the premises were damaged by fire , so as ages which he, the defendant, had sustained to be unfit for a first -class hotel , the rent by reason of the loss of the use of the rooms, should abate . The counter - claim set up in so far as caused by a defect in the fiues of the answer is, first , for $908 , expended by the chimney , without reference to the cause the defendant in repairs , and second , for of the defect , and that the fair value of the $700 damages occasioned by the loss of the use of such rooms , for the time they were use of four rooms , alleged to be untenant unoccupied by reason of such defect , was able for the want of repairs . the amount to which the defendant was en The rent due was $ 1, 000 , with interest from titled .” This charge involved two proposi August 1, 1858. tions: First , that the plaintiff was responsi The jury found specially $752 .57 , amount ble , although the defect in the flue was in its of repairs made by the defendant , and $3001 original construction , and had not occurred damages for the loss of the use of the rooms. through dilapidation or decay ; and secondly , These amounts left a balance of $9.45 due that the loss of the use of the rooms af to the defendant, for which he had a verdict. forded the rule of compensation , instead of The most important questions in the case the expense of actual repair by the defend were questions of fact, which were carefully ant. The exception was to the entire charge and correctly submitted to the jury upon the as stated . If either of the propositions was trial , and in relation to which their decision correct , the exception was too general, and is final. is unavailing. I think the charge however A question arose upon the charge for paint. was correct in both aspects . ing, on which an exception was taken by On the first point. The plaintiff ' s grantor the plaintiff . Certain portions of the wood leased the premises in question as a " first work of the hotel were repainted by the de class hotel ," and he covenanted " to keep the fendant with zinc paint, which was about said hotel and premises in good necessary fifteeen per cent. more expensive than com repair during the term , at his own proper mon lead paint, which was the original style charge and expense ." Are the rooms of a of painting, and was more durable and more hotel in good repair for such a purpose , when ornamental. The court charged , that " the they are so smoky that they cannot be oc defendant was entitled to recover the full cupied ; or when the more offensive coal gas expense of the zinc paint, although it was issues at all times from the lighted grate and more expensive than the description of paint | fills the room with its noxious substance ? originally employed , it appearing that it was No tenant or occupant can inbabit such rooms more desirable and a better material than when a fire is needed , and fires are needed white lead ." This charge was correct . The in the city of Brooklyn during three - fourths plaintiff had the option of making these re of the year . A house or a room that cannot pairs by his own mechanics , and with such be comfortably and safely inhabited is not in suitable materials as he should select . His good repair . A room in a first - class hotel, omission to do so gave the defendant the where women and children usually form right to make them by his mechanics , and portions of the family , cannot be tenantable with such suitable materials as he should or in good repair unless a fire can be had select . He was bound to be reasonable and when desired . Nor is it important, either judicious in his repairs ; but he was not com to the tenant or landlord , whether such de pelled to select precisely the same kind of fects in the flues are caused by dilapidation paper or paint, or to be precise that the ex or arise from original misconstruction . The pense was not a farthing greater than had rooms are equally untenantable and uninhab before been expended upon the same spot. itable ; they are equally out of repair , from He was at liberty to repair according to the which cause soever the difficulty may have modern style , and adopt modern improve- | arisen . The grates are in their places , and ments . The testimony showed that the re . | the flues are in the walls . No new struc BREACH OF LANDLORD ' S COVENANTS . 445 tures of an original character are required . / The defendant had two different remedies , It is only required that those in the building of either of which he could have availed him should be made to perform their proper duty . self , in the event of the plaintiff ' s failure The party agrees to "keep " in repair , and to repair , after due notice . He could have if , to keep in repair, it is necessary that the made the repair himself , and have called roooms should first be put in repair , the les - ! upon the plaintiff to refund the expense , as sor is bound to perform that duty . Mayne , he actually did , in me case of the painting ; Dam . 133, 92 Law Lib .; Payne v. Haine , 16 or he could have called upon the plaintiff to Mees . & W . 541 . There is no covenant that take the ordinary responsibility of a party the rooms be kept in their then condition of failing to perform his contract , to wit , to pay repair , and no exception of natural wear and the damages caused by such failure, as he did natural decay ; but good repair and good in regard to the item in question . In the condition at all times is the fair intent of the first case, the rule confines the damages to agreement . The requirements of a first - class the actual expense , if no special damage is hotel in Brooklyn demand all the comforts shown ; but in the other , the cost of the re and conveniences , and many of the luxuries pair is not an element in the case. It is as of civilized life . Different standards of com - if there was no such right to repair on the fort and civilization prevail in different parts part of the lessee, but the claim rested solely of the world . The location in question was in damages . In Griffin v. Colver , 16 N . Y . that of the second city of the state , immedi 489 , it was held that in the case of a failure ately adjoining the city of New York , and to deliver a steam engine at the time con the general standard of that latitude must tracted , the party injured could recover all be assumed . A hotel of the first class in his dainages , including gains prevented as such a location without the means of heat - well as losses sustained , provided they were ,

. It might naturally ing its rooms would not be tolerated certain and such as be ex

would not indeed be a hotel of that character . pected to follow the breach . According to , If the rooms had been rendered untenantable the reasoning of the learned judge in that , , it by water from the roof would have been case the damages for the loss of the use of , , an answer to the request to repair that the the rooms as here claimed are both certain , , , leak existed when the lease was entered and proximate . See also Freeman v . Clute , , ; into ? If the ceilings had fallen or the rooms 3 Barb . 424 as explained by Judge Selden , , ; were filthy from dirt and want of paint it and Trull v . Granger 8 N . Y . 115 and Doe , , , L . . 38 E . C . . & P . 9 certainly would have been no answer that v . Rowlands Car 734 425 . they were in that condition when the lease The judgment should be affirmed All , , , ,

except C . J . of was made . The condition the covenant concur DAVIES and MOR , ,

only , , as

in already to keep repair stated can GAN J . dissenting . , be performed by first putting in repair when , , N . Y . 56 v . the In 420 . , Cook Soule that is necessary . Beach v . Crain 2 N . Y . NOTE in , Myers court referring to the rule laid down ,

86 supra . , ,

and cases , , : “ supra per J . There v . Burns said Grover proposition . In the extent exceptions to The second involved may be this rule cases where

trifling , damages ; plaintiff claiming the requisite repairs are and the dam of the the that , by it is ages not making them are large I think the defendant was entitled to no larger sum , to the duty of the tenant make them and if it the defendant had cost v . than would have charge the landlord with the cost . Miller Mar , , ; , himself repaired the defect and the defend iner ' s Church 7 Greenl . 51 Loker v . Damon ,

17 . . giving ant claiming that he was entitled to recover Pick 284 The tenant after reason to able notice and opportunity to the landlord as damages the loss that he actually sug , , may make the repairs if he neglects himself , , tained from being deprived of the use of the make them and charge the landlord with the " . rooms . expense 446 BREACH OF CONTRACTS RESPECTING REAL ESTATE

, , BOSTWICK V. LOSEY. Russell R . Pealer with a jury in the circuit court for the county of Branch , the defend . , (35 N. W . 246 67 Mich . 554 . ) of ants recovered judgment in the sum ,

. $ . 81 . plaintiff . . 10 brings . Supreme Court of Michigan Nov 1887 771 The error

It is evident from the record that but a , ;

· Appeal county . from circuit court Branch up very small portion of the evidence taken , Russell R . Pealer Judge . of ex in is on such trial contained the bill , & Styles appellant .

George ; for Barlow ceptions nor does said bill anywhere arer , Loveridge for appellee . that all the testimony is set forth in the rec of it ord upon any given point . This fact ,

J . plaintiff to MORSE The rented the self disposes of some of the errors alleged . , ,

Logey & a period of defendants Barton for For instance it is claimed that the court , , five years from and after January 1 1880 a erred in admitting the testimony of two wit , , certain saw mill- in Union City at the rate nesses Clark and Kerr as to the value of

logs , of per year . If average of $ 500 the the water power- at Union City when they lived , , in the millyard did not reach 300 000 feet at Coldwater and substantially admitted that ,

year to each then the rent was diminish as they knew nothing of the value of water , , , , $ to ( the 500 was 300 000 for example if power at Union City where this mill was , , , there were 200 000 feet only the rent was to located and had never seen the water - power

$ . 33 . ) agreed to “ - be 333 Plaintiff new roof in question . One testified that the use was , , repair , it the mill and the flume when neces worth $ 5 per day and the other that would , , sary doing the work expeditiously so as to be worth from $ 4 50. to $ 5 .

running of not interfere with the the mill We find in the charge of the circuit judge

longer necessary . ” than was He was also the following : “ In considering the question ,

" to repair of the foundation the mill should you have the value of the use of the water , , way , including it give not however the tem power . This is a matter for you to deter ,

of machinery porary underpinning the below mine from the evidence . You have the tes , or that under the slabpile outside or the timony of the plaintiff and defendant them , ,

way- . " to board Defendants were leave the selves that it is worth from $ 6 to $ 7 and the

machinery belonging to plaintiff in good re - | testimony of other witnesses fixing a differ ,

pair of years at the end five allowance be ent range . " The record does not purport to , ing made for natural wear and tear and give all the testimony of the plaintiff . On

keep , in

machinery at contrary it plainly appears the mill and order their the that only a

own expense . Defendants occupied the mill small portion of his evidence is contained , , ,

. It presumed under this agreement until May 15 1884 therein must therefore be con , , is when they quit and abandoned the premises sidering this charge of the judge which , claiming that plaintiff had not kept his cove not excepted to or questioned that the plain

nants as to repairs . At the end of the first tift himself testified that the water - power

two years there was a settlement between was worth from six to seven dollars a day . , , the parties and all accounts in relation to If so he cannot complain because Clark and

the mill closed and determined for that time . Kerr were permitted to swear it was worth , The plaintiff brought suit for the amount | less . Nor if he testified on his own behalf

of the rent due according to the terms of the upon his direct examination that it was , , , contract claiming $ 1 500 for such rent . He worth this amount can he complain that the

negligence of in

permitted to also averred the defendants defendant was testify as to its , running the mill and their failure to care for value . From the record we cannot tell when , ,

keep machinery in re and the same and its the plaintiff testified to the value of the use , , pair and claimed damages in this respect of of this water - power and as we cannot pre , by , $ 1 000 . Also $ 200 damages reason of the sume error we must hold that the objection

failing to give proper defendants him ac to the defendant Losey ' s evidence of such , , cominodations for sawing his lumber lath value was properly overruled .

according to agreement and other timber the The main allegations of error are based

provided , which that defendants should saw | upon the instructions of the court to the jury , ,

all logs plaintiff for hauled from his lands and his refusal to give certain requests ask

specified prices . ed by ' s . at certain The defendants plaintiff counsel The contention is , pleaded the general issue and gave notice that the defendants had no right to abandon of logs in yard

premises of that the amount the the did the because the plaintiff ' s neg . , ; ,

in any year to repair they not reach 300 000 feet that the lect and that could not re ,

plaintiff to keep failed his contract in that cover for the damages sustained by them ,

neglected to put a he and refused new roof while in the use of the mill because of such , , ; ,

to repair or - | on the mill the flumes the foun neglect that it was their duty in case plain ,

of . By of neg dation the mill reason this tiff did not new roof- the mill and repair the ,

utterly | lect and refusal the mill became flume and foundation to repair the same , , worthless and useless to defendants and the themselves and charge the expense thereof , -

power to damage of up to in water was lost their the plaintiff reduction of the stipu , ; $ 3 . of a 000 the portion of That of foundation lated rent also that the value the use of

gave way , by they the mill which also sus the water - power was not the proper measure , damage . l ' pon a tained trial before Hon . I of the damages suffered by the defendant BREACH OF LANDLORD ' S COVENANTS . 447

Upon the trial it was conceded that there , consideration of the agreement or lease fail were 300 ,000 feet of logs in the mill -yard | ed , and the defendants were justified in each year , and the issue in that respect is abandoning the premises , and the stipulated not here . It appears beyond question that | rent could not be recovered after such fail the flume was defective . The plaintiff testi ure of consideration . Tyler v. Disbrow , 40 fied that , when they settled for the first two Mich . 415 ; Wood, Landl . & Ten . § 377 ; years , an allowance was made to defendants Hinckley v. Beckwith , 13 Wis . 34. Nor for the damages resulting from the defects were the defendants bound to make the re in the flume. He also admitted that in the pairs themselves . It was the duty of plain fall of 1882 defendant Losey asked that the tiff , under the agreement , to make these re mill be repaired , but that he failed to repair pairs , without which the premises were of it . The testimony on the behalf of the de but little or no value for the use defendants fendants tended to show that they lost the required , and to which they were entitled use of the water -power for a large number under the contract . The defendants had the of days , by the plaintiff 's not making repairs right to hold the plaintiff to the ordinary re upon the flume, and that the water had be sponsibility of a party failing to perform his come perfectly useless , and that , if the plain agreement , to -wit , to pay the damages caused tiff had repaired the flume so that defend by such failure. We can see no difference ants could have had the full benefit of the in this respect between this and any other water -power , the use of it would have been contract . Hinckley v. Beckwith , 13 Wis . 31 ; worth $600 or $700 per year ; that they had Id ., 17 Wis . 426 ; Myers v. Burns, 35 N . Y . to put in steam -power in order to run the 269 ; Hexter v. Knox , 63 N. Y. 561. mill. The question to be determined on their | The rule of damages was properly laid theory is , what were the defendants ' rights down by the court . The failure of the wa and duties in the premises ? Had they the ter - power was the grievance complained of. right to abandon the premises because , with - The defendants were entitled to the use of it , out the repairs covenanted by the plaintiff, as it would have been had the flumes been the water -power was useless , and to recover kept in repair , for saw -mill purposes . The damages for the difference in the value of its value of the use of such water - power for use between what it would have been if the such purposes was shown by witnesses . We repairs had been seasonably made , and what do not consider that such value was specula it was without the repairs , as the circuit tive or uncertain , or that showing such value judge instructed the jury ; or was it their and allowing it as the basis of damages was duty , when the plaintiff refused to make the in effect permitting the profits of the saw repairs, to go on and repair the flumes them mill to be computed in estimating the dam selves , and charge the expense thereof , and ages. The contract or lease itself shows that the value of the time the mill remained idle , this water -power had a rental value , and we while the work was going on , to the plain can see no serious difficulty in the way of tiff ? ascertaining to a tolerable and sufficient cer · What the defendants contracted for was tainty the value of this use to which the de the use of the saw -mill, and the saw -mill fendants were entitled by their agreement . was dependent in its use upon the water It was also conceded on the trial that there power which propelled it. The plaintiff cove- / were logs in the mill -yard ready to be sawed , nanted to keep the flumes, through which the so that work was at hand for the mill , if the water passed to the mill , in repair . If he water -power was available . neglected or refused to do this when noti The judgment is affirmed , with costs . fied, and on account of such neglect the wa ter - power was destroyed , and the mill there - SHERWOOD and CHAMPLIN , JJ., con by rendered useless to the defendants , the cur. CAMPBELL , C. J ., did not sit . 418 BREACH OF CONTRACTS RESPECTING REAL ESTATE . , , . of LIGHTFOOT et al. v. WEST . til the end their term When therefore the shed fell down before the term of lease , . . ) . 98 ( 25 S . E 587 546

Ga , began , and before the lessees took possession ,

upon to . it 8 Supreme Court of Georgia . June 1896 was incumbent the lessor rebuild to

in put the same . This was essential order ; ,

Clay county J . Error from superior court perform position to the lessees in a their un , .

M . Griggs Judge dertaking and carry out the evident intention B . against W . E . Action by J . B . West and . of the parties to the contract

a judgment . F . Lightfoot for rent From for

question or Light 2 . The whether not the , . plaintiff defendants bring error . Reversed foots would have been authorized to rescind , . J . plaintiffs in R . ,

error of John Irwin for the entire contract because of the failure ,

Peeples , & in D . is Rambo and Harrison for de West to rebuild the shed not made the , fendant in error . present case for the reason that the former

actually took possession of and used the ware , , , , . a 25

J . July LUMPKIN On 1894 writ house without the shed . Nevertheless we by

W . E . Light

up as a to ten contract was executed think it was their right set defense F .

. B . Lightfoot possession at foot and Mrs for the lease that they were induced to take , , a belonging to a term to of warehouse West for the beginning of their term and hold onto ,

of year to begin on of one which was the 1st the lease because a verbal promise made

Lightfoots , ensuing .

August to day of next The by West rebuild the shed but for which , to at the same time executed and delivered they would have declined to enter and that

promissory , upon West their notes for the rent the consideration of the note sued had by payable in subsequent which their terms were made partially failed because of the re , , , respectively days

agreed . as installments due on the 1st fusal of West to rebuild As will , , , , . ,

of 1994 pleas in October November and December have been seen one of their con brought against Light West an action the nection with the amendment offered to the , potes . stipula upon of foots one these The same would have enabled them to present , tions in the lease contract which are now this defense had not the court rejected the , , material to be considered and the nature of amendment and struck this plea along with

, appear the defense to the action will from an several others which the defendants had fil

syllabus . foregoing ed . examination of the We think the amendment should have

apparent parties , it 1 . We think that the been allowed and that the court should then

contemplated to be pass upon that the warehouse was have permitted the jury to this

beginning of at to delivered the lessees the particular plea as amended .

substantially up in at pleas setting against plain their term least the same 3 . The the it condition as was when the contract was tiff ' s demand prospective profits that might

obligation to

. They signed were under no have been made in the warehouse business un property in repair or keep duly look after the in case the shed had been rebuilt were to . of til it was actually turned over them The properly stricken . Damages this kind are

meaning of obvious the contract was that too remote and speculative to be estimated . on to they were receive the warehouse the Judgment reversed .

1st day of August in the condition existing , , , , in as

to keep it of

on July J the 25th and were ATKINSON . providentially absent and

good repair as un - it was upon the latter day | not presiding . BREACH OF LANDLORD ' S COVENANTS . 449

RAYNOR V. VALENTIN BLATZ BREW , in question and it appeared that he had op ING CO . erated the theater and saloon upon Sunday as well as upon week days , whereupon , up , (76 N. W. 343 100 Wis. 414 .) on the cross -examination , the defendant's at torney endeavored to ascertain from the Supreme Sept , Court of Wisconsin . . 20 1898 . plaintiff ' what part of the estimated profits Sunday Appeal from circuit court , Milwaukee coun were derived from the business . Aft questions upon subject , ty ; D. H . Johnson , Judge . er several this the Action by John S. Raynor against the Val court made the following ruling , to which entin Blatz Brewing Company . Judgment the defendant took exception : " I hold the for plaintiff . Defendant appeals . Reversed . profits which he makes on Sundays is to be included the same as other days , and that the by This was an action the lessee of real es profits which this man made on Sunday in damages tate against his lessor for for al his business are not to be distinguished from leged breach of the covenants of a lease. It the profits he made generally . I will give , , appears that about April 1 1897 the defend you the benefit of the exception , and stop the ant leased to the plaintiff for one year a investigation right here as far as the Sun building in the city of Milwaukee , known as day business is concerned , without holding the " People 's Theater ," to be used as a thea whether his business is legal or illegal on , per ter and saloon at a rental of $200 month . Sundays or other days . There is a difference plaintiff possession The had been in of the between a contract 'made ' on Sunday and years previously , theater for several and this 'executed on Sunday . A court held a con year only last lease was an oral lease for a . tract made on Sunday was illegal, but they April paid , The rent for the month of was never held a contract executed on Sunday il plaintiff posses and then the continued in legal. The result of that would be in an ac , operated sion and his theater and saloon in counting between partners, or in such busi , April , , connection until 28 1897 when the ness , it would be necessary to eliminate from , season was said to be over and the theater the business the business done on Sunday , if plaintiff , was closed . The claims that as any of it was done on Sunday . If he is enti , agreed part of the lease the defendant to tled to recover profit , it is immaterial wheth necessary repairs building make all in the er they were made on Sunday or any other during year ; the but the defendant denies day , in my judgment ." Thereupon no fur , only agreed this and claims that it to make ther questions were asked upon this subject. specified repairs , certain which were then A special verdict was demanded , and the de pointed by plaintiff , out the and which were fendant, among other questions , requested , , building made . In June 1897 a new was that the court submit the following questions immediately joining about to be erected the as a part of the special verdict : " ( 7) Did the , city inspector theater and the of buildings plaintiff , during the years 1891 and 1895 , run thereupon inspected building question , the in his theater and the premises in question on dangerous , and condemned it as and ordered Sundays ? (8) If you answer the foregoing , it to be torn down. On the 26th of June the interrogatory in the affirmative , was not a plaintiff , by , letter demanded that the build large portion of his profits derived from keep ing put repair days be in . Two later, the de ing open his theater and premises in ques fendant replied , by letter , denying that it tion on Sundays ? (9) Was a considerable had made any agreement to repair . On the portion of the profits of the plaintiff derived July , plaintiff , by , 11th of the letter demand from the sale of liquors in his said theater ed that repairs be made forthwith , and sent on Sundays ? (10 ) Is a considerable portion the keys of the building to the defendant for of the anticipated profits claimed by the purpose permitting the of it to make the nec plaintiff founded on the expected keeping essary repairs . The defendant made no re open of said theater on Sundays , and the sale pairs, August but on the 13th of returned the of liquors therein on such days ? ( 17) How keys, with a short letter saying that it had much of the anticipated profits claimed by complied with the terms of the lease . On the the plaintiff as damages were to be derived August, plaintiff replied 14th of the to this from the keeping open of theater on Sun letter , asking in what particulars the lease days, and the sale of liquors therein on said complied , had been with and limited the days ?" The court refused to submit any of time for a reply to August 20th , on the these questions , and exceptions were duly ground that after that time he would have taken to such rulings . The following special no use for the premises , as he would be un verdict was rendered : “ ( 1) Did the defend able to carry out his contracts with theat ant corporation lease the premises in ques rical companies . The defendant made no re tion to the plaintiff for the term of one year ply to this letter , and made no repairs, but, from the first of April , 1895, upon the terms in October following , tore down the building . stated in the complaint , except as to repairs ?: Upon the trial, the plaintiff was allowed to Answered by direction of the court : It did . prove as a basis for the estimation of damages ( 2) Did the plaintiff remain in possession of what his profits had been in the use of the said premises during substantially the whole building during as a theater and saloon the month of April , 1895 ? Answered by direc several years immediately preceding the year tion of the court : He did . (3) Did the plain LAW DAM . 3d Ed. - 29 450 BREACH OF CONTRACTS RESPECTING REAL ESTATE . tiff pay to the defendant corporation the sum and fifty dollars ($8, 250).” Judgment for the of two hundred dollars on account of the plaintiff thereon was rendered , and the de rent reserved in said lease ? Answered by ' fendant appeals . direction of the court : He did . ( 4) Did the C. W . Briggs , for appellant. Sylvester , defendant corporation , prior to the making Scheiber , Riley & Orth , respondent of said lease , or at the time of the making for . thereof , undertake to make some repairs up on said building ? Answered by direction of WIXSLOW , J . (after stating the facts ), the court : It did . (5) Were such repairs The verdict in this case justifies the judg . pointed out by the plaintiff , and agreed to ment for the plaintiff , and we have discover by the defendant corporation ; or were the ed no substantial error in the case save upon repairs which the defendant corporation un - the question of the measure of damages , dertook to make all necessary repairs for This was undoubtedly a case within the rules the use of the premises in question , for the laid down in Poposkey y. Munkwitz , 65 Wis . purpose of a theater and barroom ? Neces - 322 , 32 X. W . 35, where the law authorizes sary repairs. (7) If, in answer to the fifth the recovery of anticipated profits of a busi interrogatory , you say that the repairs under - ness as damages . The loss of such profits in taken to be made by the defendant corpora - the present case must clearly have been tion were such general repairs as were nec- within the contemplation of the parties , and essary for the use of the premises , for the they are not too remote or conjectural, and purposes of a theater and barroom , did the are capable of being ascertained with reason defendant corporation subsequently refuse able certainty , because the plaintiff had been to make such repairs ? It did . (8) Was the transacting the same business for years in building in question owned by the defend the building . The evidence , therefore , show ant corporation , standing upon land owned ing the plaintiff 's previous annual profits in by the Pabst Brewing Company , and leased this very building while transacting the same by the defendant corporation ? Answer by business , was properly received as a basis for direction of the court : It was . (9) Did the ascertaining the profits which he might rea building inspector of the city of Milwaukee , sonably anticipate during the balance of the on or about the 6th day of June , 1897, noti year after his practical eviction . But the prof fy the defendant corporation that said build its of an unlawful business cannot be any prop ing was dangerous , and that the same was er basis for the estimate of damages . This condemned ? Answer by direction of the would seem to be too clear for argument . court : He did . ( 10) How long did said The profits made on week days may properly building remain standing and without fur - form such basis ; but the profits made of ther repair after said notice was given ? An Sundays , resulting from a criminal violation swer by direction of the court : About four of the Sunday law , cannot form any legal montis . ( 11) At the time of the taking of basis for the estimate of damages . As well the lease aforesaid , did the defendant corpo might it be claimed that the profits resulting ration know , or could it in the exercise of or from operating a gambling hall or a house of dinary care have known , the then condition ill fame could be used as a basis for dam of said building ? They could . (12) Did the ages . To state the proposition is to answer plaintiff at the time of said leasing know , or it. The defendant attempted , by cross -exam could he in the exercise of ordinary care have ination of the plaintiff , and by a question known , the then condition of suid building ? proposed to be submitted in the special ver Ne, (13 ) Was the said building at the time dict , to ascertain what part of the anticipat of the making of said lease , in an unsafe ed profits were based upon the Sunday busi condition , so that it was dangerous to run a ness ; but it was held by the court that the theater and a barroom in said building ? No. inquiry was immaterial, and we regard the (11) Could said building have been repaired question as properly raised by the exceptions so as to make it safe to run a theater and taken to these rulings . Yor was it necessary barroom therein during the term of said to raise the question by pleading . The de lease , to wit , one year from the first day of fendant was not required to anticipate that April , 1895 ? Yes. ( 15) If you answer the the court would allow evidence of improper last interrogatory in the affirmative , what · elements of damage to be received and go to would be the expense of making such re - the jury . It is a question of evidence , and pairs ? Cannot tell .: ( 16) Did the defendant not of pleading . It seems quite certain that corporation demolish the building , as char the jury took into account the Sunday profits ged in the complaint ? Answer by direction of past years in their estimate of the profits of the court : It did . (17 ) Whatprofit, if any, to be anticipated . Certainly , the rulings of could the plaintiff have made by the use of the court practically required them to do so . said building for a theater and barroom dur - | Hence there must be a new trial . Judgment ing the term of eleven months, commencing / reversed , and action remanded for a new May 1, 1895 ? Eight thousand two hundred ! trial. BREACH OF TENANT 'S COVENANTS . 451

MASSIE et al. v. STATE NAT. BANK OF , 5 +1. But it does not follow that, because of VERNON . the wrongful act of the defendant in the breach of his contract by the abandonment ( 32 S. W . 797 , 11 Tex . Civ . App . 280.) of the rented premises , when the landlord . Court of Civil Appeals of Texas. Oct . 26, to protect his property from the injury it 1895 . might suffer from lying idle and abandoned , and having given the tenant due notice of Appeal , from district court Wilbarger coun his intention , lets the premises , and puts ty ; , Judge G . A. Brown . another tenant in possession , that though Action by Massie & Rather against the the tirst tenant is not any longer responsible State Bank National of Vernon to recover eo nomine for rent , that he is absolved from damages $2, 700 for breach of a contract to all liability to make good the loss which the accept judg a lease . Plaintiffs recovered landlord may sustain from his failure to ment for only $100 , and from an order deny . perform his contract . True , the landlord ing their motion for a new trial they appeal. may , if he choose , decline to meddle with Reversed . the property , and at the end of the term sue Smith & Basham , for appellants . Frank for the rent ; but he is not to be driven to , P . McGhee , for appellee . this course and run the risk of damages to his property , and the insolvency of his ten HEAD , J. In this suit appellants allege ' ant. He does not forfeit his right to com that they erected a brick building in Vernon , ! pensation for the violation of the contract by under an oral agreement with appellee that taking possession of the abandoned house , it would enter into a written contract to ' nor can the lessee be permitted to shield rent it for five years at $70 per month ; that himself from all recovery under an act which about the time tlie building was completed , indeed lessened the loss that he had caused . appellee refused to occupy it, or sign the , The plaintiff in this case was entitled to re contract , as it had agreed to do ; that the cover, not , indeed , for rent of the premises actual rental value of the building for the after the abandonment of them by the de stipulated five -year term was only $1,800 , ! fendants , but for compensation for the in and damages were claimed to be estimated at jury done him ; and the proper measure of the difference between this sum and $ 1, 300. his damage is set out in the account upon the agreed rent. The court charged the jury which he sues ; that is , the difference be that : “ If, under the foregoing instructions tween the rent he was to receive and the and the evidence , you find the plaintiffs are rent he did receive , if that were the utmost entitled to recover any damages from the for which . by the exercise of ordinary dili defendant , the measure of such damages will gence , the premises could be rented . Field , be the difference , if any, between the sum Dam . 523 ; Sedg . Dam . 944 ." If appellants the plaintiffs have received for the rent or had , upon the refusal of appellee to comply use of the room agreed to be lea sed , from the with its contract , rented the house to some date of its completion under the contract to other person for $ 1,800 , that being its full , this date and the price and sum they would value for the contract period , the decision ; have received during such time under the here quoted would be directly in point and ; contract with defendant but you cannot we think the principle is the same where the , consider any sums or difference to which lessor retains the premises and charges him

plaintiffs would be entitled after this date . " self with the amount he could have obtained a is

charge . It We think this was erroneous . We from others well settled that for

concur in what is said upon this subject by breach by the lessor of the covenant for , , , Quinan J . in Randall v . Thompson 1 White quiet enjoyment the lessee can recover as , & W . Civ . Cas . Ct . App . 1102 and therefore damages the difference between the value of ,

stipulated ( v . quote at length from that opinion as fol his lease and the rent Buck , , ; lows : " Plaintiff rented premises to defend Morrow 2 Tex . Civ . App . 361 21 S . W . 398 )

ant for a specified term . Before the expira and no satisfactory reason can be given why , of tion the term defendant abandoned the the same rule should not be applied in favor ,

premises notifying plaintiff at of the time of the lessor against the lessee . It has also

such abandonment . Plaintiff then rented been held that for a refusal by the purchas

the premises to another party for the re er of real estate to complete his contract the , mainder of the term but for a less sum than seller can recover as damages the difference

to pay defendant had contracted therefor . between the agreed price and the market , : it is Held But contended that the aban value Kempner( v . Heidenheimer 65 Tex . , ; ,

of premises to donment the the lessor 591 ) and if this measure is to be applied , though against , his wish and with notice to contracts involving the fee simple- title responsible that he would hold the lessee we see no reason why it should not be ap , . In for the rent for the full term and his sub plied to those for shorter terms mak ,

sequently letting place to the another ten ing the estimate of this difference in value , ant was a surrender and termination of the however due allowance must be made for , , lease and that the plaintiff has no right to the fact that the whole $ 1 500 was not to be ,

payment to recover rent since the termination of the paid at once but was be made , . 1

. Prop . 6 . I in of $ 73 lease Washb Real 479 Whart monthly installments each . It will 452 BREACH OF CONTRACTS RESPECTING REAL ESTATE . therefore be necessary to discount these pay - | court at all is a certificate of the clerk to ments at the legal rate of interest , to arrive | a copy of the judge 's notes made upon his at their present value ; and a similar precau - docket , with the statement that the orders tion must also be observed in arriving at thus indicated were never carried into the the market value of the lease. minutes of the court . We have heretoforr That the breach alleged in this case was held this insufficient. Swearingen v. Wii of such a nature as to put an end to the en : son , 2 Tex . Civ . App . 157, 21 S. W . 74 . tire contract , and theiefore authorize , if not We also express no opinion as to the right require , appellants to sue for all of their of appellants under their allegations to re . damages in one action , we think clear . cover as damages the alleged difference in Hearne v. Garrett , 49 Tex . 625 ; 1 Sedg . Dam . value between the building as constructed (8th Ed .) $$ 87, 90. and what it would have been worth had it What ro have said has been without ref . been completed as first contemplated , in erence to the effect of the statute of frauds case , for any reason , they should be held upon this contract . This defense does not not entitled to recover the difference in seem to have been relied upon , except by rental value . It was alleged that this build special demurrer , which , upon the record as ing was first intended for mercantile pur presented to us, we must treat as having poses, and its construction changed at an been waived . increased cost , to make it suitable for a We must also refuse to sustain appellants ' bank , in reliance upon appellee 's promise to assigoment to the alleged action of the court rent it as above set forth . This question in sustaining appellee ' s exceptions to their has not been briefed . The judgment of the pleading . The only evidence we have that I court below is reversed , and the cause re these exceptions were acted upon by the manded . BREACH OF TENANT ' S COVENANTS . 453

UNITED STATES TRUST CO . OF NEW , notice on the house , and to allow the preni YORK v. O'BRIEN . ises to be shown for the purpose of selling or

leasing the same . The plaintiff recovered a

(38 N . E . 266 , 143 N . Y. 284 . ) verdict on the first trial , which was set aside , , Court of Appeals of New York . Oct . 9 1894 . upon appeal by the general term and upon the second trial the court directed the verdict Appeal from superior court of New York

of . plaintiff

, six cents as stated The now city general term . of Action by the United States Trust Com - | urges that the direct result the violation of to , , these covenants was the failure rent

as against pany of New York trustee Miles , , the house from May 1 1889 until February M . O Brien' . From a judgment of the gen , , damages might plaintiff 1 have been eral term affirming a judgment for 1890 and that , jury on it

to by for nominal damages merely he appeals . į awarded the the evidence for ,

at of $ 1 per year . Reversed . that time the rate 000 The

courts below have held as matter of law that , Edward W . Sheldon for appellant . Peter the failure to rent could not upon the evi , A . Hendrick for respondent . dence be regarded as the natural or neces of sary consequence of the breach his cove , , J . PECKHAM The plaintiff commenced i nants by the defendant and hence directed

to damages this action recover for the a verdict for nominal damages only . , of in a breach certain covenants contained It is clear and so it has been held in many , lease of premises situated in the city of New cases that the rule of damages should not

to a dwelling . York the defendant for house depend upon the form of the action . In all , , di in After the evidence was all the court civil actions the law gives or endeavors to ,

a plaintiff rected verdict for the for six cents give a just indemnity for the wrong which ; , damages only and the judgment entered has been done the plaintiff , and whether the

having by general , thereon been atfirmed the act was of the kind designated as a “ tort " , ,

of superior term the New York court the or one consisting of a breach of a contract ,

appealed it plaintiff of damages has here and now main is on the question an irrelevant , , of question of by J . in tains that the the amount inquiry . As was said Rapallo , , , of in

damages N . Y . arising from the breach the cove Baker v . Drake 53 211 220 the ,

to jury . nant should have been submitted the quiry is what is an adequate indemnity to

plaintiff is un The the substituted trustee the party injured ? and the answer cannot , H . . der the will of William Belden deceased be affected by the form of the action in to Its predecessor executed the lease the de which he seeks his remedy . In special cases ,

a of years expiring fendant for term three where punitive or exemplary damages are , , on of . the 1st May 1889 The lease contained allowed an exception exists to the general , a covenant against subletting or assigning | rule of indemnity . Swain v . Schieffelin 134 , , , , on the part of the lessee and also a covenant N . Y 471 474 31 N . E . 1025 . It is a mis , in , on his part that at reasonable hours the take therefore to say that liability for

daytime he would permit the lessor or his breach of covenant is less extensive than for , agent to show the premises to such persons that of tort if cases of tort be excluded in

purpose of or as he desired for the selling which punitive damages are allowed . In an , , leasing the same and that he would permit action for a breach of contract the damages on

to posted the usual notice of “ To let ” be recoverable are those which the parties may , the premises and to remain there without fairly be supposed when they made the con , , molestation . In November 1888 the de tract to have contemplated as naturally fol . , fendant vacated the premises and sublet lowing its violation . Rochester Lantern Co . , , Y . . N .

to a party a portion & them third for of the v . Stiles Parker Press Co 135 209 , , , , term remaining . This person being in pos 217 31 N . E . 1018 . Speculative contingent ,

to permit posting any session refused the of and remote damages are excluded . The courts , notice and refused entrance to any one for below have agreed that this is the true rule , , a to in of the purpose looking at the house with of damages and applying the rule this ,

of damage view of purchasing or leasing the same . case have held that the proof

The house remained unoccupied , and with and the cause thereof were too uncertain and , ,

being or February 1 out leased sold until speculative to authorize a recovery for any , ; 1890 when it was leased for $ 900 a year . other than nominal damages that there was given Evidence was that the rental value no solid or substantial basis for the jury to , , ,

to perform was in May 1889 $ 1 000 a year . When the find the fact that the refusal the , . of house was vacated it was not in a habitable covenant was the cause of the loss rent , , , , speculative “

repairs on it condition and were made In using the words uncertain ,

. In or purpose of which consumed two or three weeks and contingent ” for the exclud , , to der secure tenants and as soon as the ing that kind of damage it is not meant to

lease expired , bills were put up , and the assert that the loss sustained must be proved , house was continually offered for rent with with certainty of a mathematical demonstra ,

February following . necessary out success until The tion to have been the result of the plain by . to plaintiff then brought this action recover breach of covenant defendant The

damages for the breach of the covenants not tiff is not bound to show to a certainty that , to sublet and to permit the placing of the excludes the possibility of doubt that the loss 454 BREACH OF CONTRACTS RESPECTING REAL ESTATE .

to him resulted from the action of the de - 1 and obvious consequence of a breach might fendant in violating his agreement . In many | be the failure to rent. I do not say "must " cases such proof cannot be given ; and yet | be the failure to rent, because it is equally there might be a reasonable certainty , found plain there would be a possibility of renting corp ed upon inferences legitimately and proper notwithstanding the breach of such ly deducible from the evidence , that the nants ; and , if the renting were accomplish plaintiff 's loss was not only in fact occa ed , there might be no damage sustained be sioned by the defendant's violation of his cause of the breach . In a case , however . covenant , but that such loss was the natural where there is a failure to rent , is the cause ard proximate result of such violation . Cer of such failure necessarily and in all in tainty to reasonable intent is necessary , and stances so uncertain as to prevent any recor the meaning of that language is that the loss | ery of damages ? I think not . To hold or damage must be so far removed from otherwise is to deprive the covenants of most speculation or doubt as to create in the of their value . If no damages are recovera minds of intelligent and reasonable men the ble for their breach , the plaintiff obtains very belief that it was most likely to follow from little security by reason of their insertion in the breach of the contract , and was a proba - i the lease , and the defendant runs very little . ble and direct result thereof . Such a result if any , risk from their violation . Mere pre would be regarded as having been within ventive remedies might be wholly inade the contemplation of the parties , and as be quate . If the remedy for such a violation ing the natural accompaniment and the is confined to the preventive one by injunc proximate result of the violation of the con tion , much of the force and efficacy of these tract . Regarding the purpose for which covenants will be taken away. For a short these covenants in the lease were inserted , time prior to the 1st of May in any year , in it is obvious that two of them could only the cities of this state , the season for rent have been placed there to facilitate and aiding houses exists . If during this season the the lessor in his efforts to obtain another lessor is engaged in litigation over the al tenant at the expiration of the lease with the leged breach of these covenants by the les least possible delay . Continuous occupation see , it is easy to see how ineffectual the rem of premises is necessary in order that contin - | edy by injunction might be . The season for uous rent may issue therefrom . In order to , renting is short, at best . The plaintiff ' s al secure the renting thereof , the custom has legations might be denied , and , though final become substantially universal to place only successful , the time spent even in a suc the house itself a notice that it is “ To let," cessful contest might use up the whole sea and the showing of the house itself to would son . Various colorable compliances with be tenants is a necessity which evidence is the terms of the covenants might be prac not requisite to prove . In order to secure ticed by the lessee , and , if only prolonged a these privileges , a landlord inserts the cove sufficient time, the lease would terminate nants in the lease . Can there be any doubt and the season end at the same period ; and , that parties , when inserting in a lease such though it should finally be determined that covenants , contemplate the amount of rent the covenants had not in fact been complied which may be lost through the inexcusable with , it would be too late for redress to the refusal to fulfill them as a proper measure of plaintiff by any form of injunction or of damages ? It would seem as if it were not equitable relief ; and , as the rule at law only the most natural rule , but that none would in such case be to give but nominal other could in truth have been in the minds damages , the plaintiff would be substantially of the parties . The proof may sometimes be without remedy , and the defendant would rather difficult upon the question whether escape the proper consequences of his ines , the damage was the just or proximate result cusable refusal to fulfill his obligations. If of the breach of the covenant . In such case however , it be assumed that the plaintiff it does not come with very good grace from had an adequate remedy in equity and by the defendant to insist upon the most specif injunction , that fact is no answer to his ic and certain proof as to the cause and claim for the recovery of damages in an ac amount of the damage when he has himself tion based upon a violation of the covenants . been guilty of a most inexcusable violation That a party has an adequate remedy at law of the covenants which were inserted for the has been known to be a good answer to his very purpose of preventing the result which prayer for relief in equity ; but, in an action has come about. Wakeman v. Manufactur at law to recover damages for a violation ing Co ., 101 N. Y. 205, 4 N. E . 264. Reason of his covenant by the defendant, it is no an able certainty is sufficient . The inference swer to set up that at one time the plaintiff that the result followed because of the prior had a remedy in equity which he did not violation of the contract is sometimes a le avail himself of to prevent the violation of gitimate one, and founded upon the evi such covenant by defendant. The learned dence in the case . Looking at the object court below seems to have assumed there for which such covenants are inserted and was an inadequate remedy at law , because the substantially universal custom adopted of the impossibility of proving that the plain for the purpose of renting premises , and it tiff suffered damage , and the amount there would seem plain enough that the natural of, by reason of the breach of the covenants BREACH OF TENANT' S COVENANTS . 15 .5

by defendant, and hence equity provided a covenants , and , if so, what amount of dam full and adequate remedy by injunction . I age the plaintiff sustained by reason of such We do not think there is any such impossi - , breach of defendant. bility of proof, or that there exists a perfect . There was some dispute as to the rental ly adequate remedy in equity . To say that value of the premises upon the trial, and as there may be cases where the damages re - to the length of time , if at all, that the prem coverable for a breach of this class of cove ises stood idle by reason of the acts of de nants are not nominal only , but may be def fendant, and these were questions which the inite , certain , and direct as the result of the jury should have been permitted to pass up breach , we do not mean to say that in all on . They were not of so wholly uncertain , cases of such breach , followed by a failure vague , or speculative a character as to pre to rent, the defendant would be liable for clude their submission to a jury . The plain the amount of rent lost . The failure to i tiff gave evidence tending to prove the vio rent might have no connection with the vio lation of the covenants by defendant (in lation of the covenants . It might be so deed , such violation is substantially conced plainly the effect of some other and more ed ), and that directly in consequence of such potent cause that it would be the duty of the violation the plaintiff suffered some loss of court to direct a verdict for the defendant rent. The evidence on the part of the de upon such an issue. In other cases the ques fendant was sufficient to raise a question of tion might be one for a jury to decide , under fact for the jury upon the issue whether de proper instructions from the court . The fendant caused the damage , and , if so , in question as to what was the direct , immedi what amount. The jury should have been ate , proximate cause of damage is not al permitted to decide the question . ways simply one of law . In the case at bar For these reasons , we think the judgments we think the plaintiff proved enough to re of the courts below should be reversed , and quire the submission to the jury of the ques a new trial granted , with costs to abide the tion whether the failure to rent was the di- event . All concur , except ANDREWS , C . rect result of defendant 's violation of his | J ., not sitting. Judgments reversed . ESTATE . 456 BREACH OF CONTRACTS RESPECTING REAL

| such a sum as will put the premises in the v. FIRST NAT. BANK OF WATRISS condition in which the tenant is bound to . CAMBRIDGE leave them . Elliott v. Watkins , 1 Jones , ; , (130 Mass. 343.) Exch . 308 Burdett v. Withers 7 Adol. & E . 136 , 2 Nev . & P . 122 ; Penley v. Watts, 7 Supreme Judicial Court of Massachusetts . Mid Mees . & W . 601 , 610 , 611 ; Payne v. Haine, dlesex . Feb . 21, 1881 . 16 Mees . & W. 541 ; Yates v. Dunster , 11 Action by Sarah W . Watriss against the Exch . 15; Rawlings v. Morgan , 18 C. B . N . First National Bank of Cambridge . Defend - S.) 776 ; Navne, Dam . 232 , 233 . In Yates v . ant was plaintiff ' s tenant , and , at the termi Dunster, Baron Parke quoted the statement nation of its lease , removed fixtures from the of Lord Holt, above cited , and referred to leased premises . This action is for breach of 1 Newcastle v. Broxtowe, 4 Barn . & Adol . 273 , the covenant to surrender the premises in 1 Nev . & Man . 598 , in which , in an action good condition . Judgment for plaintiff . against the hundred for the demolition of a The plaintiff asked the judge to rule that house by rioters, it was held that the owner the measure of damages was the cost of re of the house was entitled to recover that sum , placing the fixtures removed , less wear and of money which would replace the house as tear of the same , making proper allowance nearly as practicable , in the situation and for substituting new material for old . The state it was at the time of the outrage com , although injury defendant asked the judge to rule that the mitted the to its rental value measure of damages was the depreciation in was only one fourth as much . lay the value of the premises demised , caused by Without undertaking to down an in the acts of the defendant . The judge de- flexible rule , applicable to all cases, we are clined to rule as requested by the defend - of opinion that in the present case the de ant , but ruled as requested by the plaintiff , fendant is not aggrieved by the ruling at the and found for her for the larger sum named trial . The action is brought after the termi in the auditor 's report . nation of the lease, and the surrender of the premises by the defendant to the plaintiff . S H . Dudley , for plaintiff. J . W . Ham . The wrong complained of is not mere dilapi mond , for defendant . dation or suffering to go to decay ; but it is the voluntary removal of fixtures that had , general , GRAY O. J . As a rule the meas been annexed to the freehold , and were part damages ure of for the breach of a lessee's of the plaintiff ' s real estate , at the beginning keep repair , covenant to in and to surrender of the lease sued on . Watriss v. Bank, 124 premises the demised at the end of the term Mass . 571. In such a case , the measure of good they in as order and condition as are in damages must be the sum which will put the beginning , would at the of it is the sum it premises in the condition in which the de repair premises put cost to the and them in fendant was bound to leave them , allowing they ought the condition to be in . In the for reasonable use and wear . When that , time of Lord Holt this was the rule even in sum is less than the diminution in the mar brought expiration an action before the of the ket value of the premises by the removal of Shortridge Lamplugh, Raym lease. v. 2 Ld . . the structures , neither party suffers by this , , , ; Champion , , 798 803 7 Mod . 71 77 Vivian v. rule ; because the plaintiff , by applying that Raym , 2 Ld. . 1125 1 Salk . 141. In Vivian v. sum to the restoration of the premises , ob Champion , great judge that said : " In these tains a full indemnity . When , as in this ought very good damages ; actions there to be case , that sum exceeds the amount of the in always practised and it has been so before jury to the market value of the premises , the , everybody me and else that I ever knew . plaintiff is entitled to it ; otherwise, a tenant always inquire, , We in these cases what it who , without the consent of his landlord , had put premises repair, will cost to the in and altered the nature or the arrangement of the give so much damages , and the plaintiff buildings demised , might escape all liability ought justice apply damages in to the to the for more than nominal damages for the repair of the premises ." breach of his covenant , by proving that his According to later cases, when the lessor alterations had increased the market value repair, pending sues on the covenant to the of the estate . Elliott v. Watkins , above cit , posses lease and so before he is entitled to ed. Maddock v. Mallet , 12 Ir. C. L . 173 . premises , damages may per sion of the the This case is not distinguishable in principle haps be limited to the diminution in the mar from Lawton v. Railroad Co., 8 Cush . 230 , ket value of his estate . See Nixon v. Den . which was an action for breach of an agree . , , ; ham 1 Ir. Law R . 100 1 Jebb & S. 416 Smith ment to build fences between the lands of v. Peat , 9 Exch . 161 ; Macnamara v. Vincent, the plaintiff and of the defendant ; the de 2 Ir. Ch . 481 ; Davies v. Underwood , 2 Hurl . fendant contended that the plaintiff could ; Hayden , ; & N . 570 Bell v. 9 Ir . C. L . 301 || only recover damages for the injury to his

v. , ; by ; Mills Guardians of Poor L . R . 8 C P its being . . 79 | land unfenced but it was held ,

Mayne . ( . ) Dam 3d . Ed 229 But when to the that he was entitled the sum which it ,

is brought of action after the end the term up would fairly cost to put the fences accord damages is

the to measure l of ing to still held be the agreement . BREACH OF TENANT'S COVENANTS . 457

Whether the defendant is legally entitled to lowance has been made with the plaintiff ' s an allowance for the increase of value by sub - | assent . stituting new material for old need not be Judgment for the plaintiff for the larger considered , because in this case such an al. I sum .