nor, if the contract be to pay upon conveyance, can the vendee recover costs where he makes no actual tender.40

42

§ 1758. Vendee's breach of contract-Difference between purchase price and value of land.—The prevailing rule evidently is that, where a purchaser of land improperly fails or refuses to complete his contract, the measure of damages is the difference between the contract price and the actual or market value of the land at the time of the breach," or at the time when the deed should have been accepted if at that time there was any decrease in value; 2 or at the time fixed for the delivery of the deed. Such other loss may also be added as may reasonably have been contemplated." Again under the California Code the detriment caused by breach of an agreement to purchase an estate in real property is deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him. Under other decisions the measure of damages, in an action at law where the purchaser has refused to receive the deed tendered to

R. 178; 17 N. E. 131, aff'g 39 Hun, 576; James v. New York, 4 N. Y. St. R. 86.

45

[N. Y.] 260 [per Gridley, J.], and stating that subsequent authority is opposed to that rule); Meason v. Kaine, 63 Pa. St. 335; Ellet v. Paxson, 2 Watts & S. [Pa.] 418 (the difference between the value at the time of refusal and agreed upon price); Sawyer v. McIntyre, 18 Vt. 27.

of an executory contract of sale, quoting Schmaltz v. Weed, 27 App. Div. 309; 50 N. Y. Supp. 168, and 40 Dustin v. Newcomer, 8 Ohio, 49. citing Laird v. Pim, 7 Mees. & W. 41 Hazelton v. Le Duc, 10 App. D. 473; Old Colony R. Corp. v. Evans, C. 379; 25 Wash. L. Rep. 280; Smith | 6 Gray [Mass.], 25; 66 Am. Dec. 394, v. Newell, 37 Fla. 147; 20 So. 249; and admitting that rule in text is opPorter v. Travis, 40 Ind. 556 (re-posed to Richards v. Edick, 17 Barb. fusal to accept deed); Lewis v. Lee, 15 Ind. 499 (to be enforced by sale of the land and execution against the vendee for the balance); Farmers & C. Bldg. C. & S. Assoc. v. Rector, 22 Ind. App. 101; 53 N. E. 297; Robinson v. Heard, 15 Me. 296; Wasson v. Palmer, 17 Neb. 330; Hurd v. Dunsmore, 63 N. H. 171 (breach of contract to buy land); Griswold v. Sabin, 51 N. H. 167 (difference between agreed price and real value of land at time of breach; a case of refusal to receive deed); Bensinger v. Erhardt, 74 App. Div. Drew v. Pedlar, 87 Cal. 443; 25 Pac. 169; 77 N. Y. Supp. 577 (for breach | 749.

42 Porter v. Travis, 40 Ind. 556. 43 Keitel v. Zimmerman, 19 Misc. Rep. 581; 43 N. Y. Supp. 676.

44 Hurd v. Dunsmore, 63 N. H. 171. See sec. 1783 herein.

45 Cal. Civ. Code, sec. 3307. See

46

him is the difference between the price agreed to be paid for the land and the salable value of the land at the time the contract was broken. The recovery, however, of the difference between the contract price and the value of the land has been denied where the contract is by parol, since to allow such amount is held to be, in effect, the same as permitting the recovery of the land which cannot be had under an oral agreement."

49

§ 1759. Vendee's breach of contract-Purchase money with interest.48-It has been decided in certain jurisdictions that the rule of damages in case of the vendee's refusal to complete the purchase where the vendor proceeds for specific performance, is the purchase money with interest; or such amount without regard to the value of the land where the condition is to pay a certain price for the land in case the obligee elects to sell, which he does; 50 or such amount where the deed has been tendered and refused but it is subject to the obligor's call; 51; or where the vendor has offered to do all that the contract requires. And in case of the sale of a pew in a meetinghouse the full price can be recovered where the deed is tendered and it is refused.53

52

§ 1760. Vendee's breach of contract—Where consideration is other than money-Extinguishment of liens.-There is another class of cases, which are not strictly within the line of those considered in the last section, wherein the recovery is based upon the actual consideration consisting of certain acts to be done; thus, if support to be rendered constitutes the consideration and there is a breach of the contract, then only the amount required to furnish such support up to the time

46 Old Colony R. Corp. v. Evans, 6 Gray (Mass.), 25; 66 Am. Dec. 394. See also Pittsburg, C. & St. L. R. Co. v. Heck, 50 Ind. 303, 306; 19 Am. Rep. 713; Sanborn v. Chamberlin, 101 Mass. 418; Monroe v. South (Tex. Civ. App. 1901), 64 S. W. 1014. 47 Dippel v. Cullom, 17 Pa. Co. Ct. 282; 5 Pa. Dist. R. 216; 26 Pitts. L. J. N. S. 311.

48 See sec. 1785 herein.

49 Lewis v. Lee, 15 Ind. 499. See McClintock v. South Penn. Oil Co., 146 Pa. 144; 29 W. N. C. 325; 22 Pitts. L. J. N. S. 282; 23 Atl. 211.

50 Goodpaster v. Porter, 11 Iowa,

161.

51 Oatman v. Walker, 33 Me. 67. 52 Garrard v. Dollar, 4 Jones' L. (N. C.) 175.

53 Alma v. Plummer, 4 Me. 258. .

56

51

of bringing the action constitutes the measure of damages. So in case the property is to be paid for in certain goods at a price specified, only the price of the land interest or estate can be recovered. And where the breach consists of a failure to perform the acts which constitute the consideration for the grant of a right of way, the grantor may recover the reasonable cost incurred in the performance of said acts. So where the purchase money is to be paid in installments and there is also an agreement to do certain other acts, upon the nonperformance of which rent is to be charged, the purchaser will be liable for the rent upon default or nonexecution of the contract. Again, if land is conveyed "subject to mortgages which the grantee hereby assumes to pay," and he fails to pay the same at their maturity, the grantor, in an action for breach of the agreement, may recover the amount of the mortgage unpaid with interest. And the failure to pay as agreed certain notes of the grantor secured by mortgage on the land, in consequence of which the grantor's heirs were held obligated to the payment thereof, with interest and costs of suits, renders the grantee liable in an action for breach of the contract for the entire sum so paid." But where as a result of such a breach the mortgage is foreclosed and all the mortgaged land including that retained by the mortgagor is sold, sufficient to pay the mortgage debt and costs, the measure of damages is the value of the land thus lost by the mortgagor.

§ 1761. Vendee's breach of contract-Nominal damages.If the owner sells the land at the same price for which he had contracted to sell it to defendant, he is not damaged by the vendee's breach of contract, and nominal damages only are recoverable where the vendor retains the land and it exceeds in value, at the time of the breach by the vendee, the contract

4 Salyers v. Smith, 67 Ark. 526; 55 S. W. 536.

58 Furnas v. Durgin, 119 Mass. 500. 59 Weems v. George, 13 How. [U. See id.

65 White v. Tompkins, 52 Pa. St. S.] 190; Code, La. Art. 1924. 363.

56 Taylor v. North Pac. R. Co., 56 Cal. 317.

57 Stinson v. Dousman, 20 How. (U. S.) 461.

art. 1929.

60 Haas v. Dudley, 30 Or. 355; 48 Pac. 168.

61 Monroe v. South (Tex. Civ. App. 1901), 64 S. W. 1014.

price. So where the agreement is an oral one and the vendee buys the land thereafter at a sheriff's sale for less than the purchase price, and the vendor has not been put to any expense and there is no fraud, only nominal damages will be allowed.

§ 1762. Vendee's breach of contract-Substantial damages. Substantial damages cannot be recovered by the vendor from the vendee for breach of an executory contract of sale where such vendor fails to show damage. And when the evidence shows that the land was worth less than the incumbrances thereon, a verdict for substantial damages in favor of a grantor of land under an agreement to pay a fair price over and above the indebtedness will be set aside on appeal.

65

§ 1763. Vendee's breach of contract-Agreement for advances in price. If there is a stipulation that the vendor shall have the advances for which the property can be sold within a specified period of time over and above the purchase price with interest and before the expiration of that period the vendor gives notice to sell the property then as a very great advance could be obtained, the advance price on that day for which the land could have been sold is the basis of ascertainment of damages and not the highest rate for the entire period as specified."

§ 1764. Vendee's breach of parol agreement-Partial performance. If the grantee, after partial performance, repudiates a parol agreement to convey which was void under the statute of frauds, the measure of recovery is the value of the lands less the value of the partial performance.

§ 1765. Vendee's breach of contract-Difference between contract price and resale price.-In an English case where there was a breach by the vendee who refused to purchase, the

62 Evrit v. Bancroft, 22 Ohio St. 172.

63 Kohl v. Stover (Pa.), 16 Lanc. L. Rev. 310.

64 Bensinger v. Erhardt, 74 App. Div. 169; 77 N. Y. Supp. 577.

65 Hack v. Sexton, 43 N. Y. St. R. 692; 17 N. Y. Supp. 445.

66 Means v. Milliken, 33 Pa. St. 517.

67 Day v. N. Y. Cent. R. Co., 51 N. Y. 583, rev'g 53 Barb. (N. Y.) 250.

rule of recovery was declared to be the difference between the resale price and the contract price and that no distinction existed in this respect between a sale of land and a sale of chattels. But it was held that time was of the essence of the contract and that the vendor not being in a position to make a good title on the day specified, an action for damages was not sustainable. And where the land was subsequently sold at public auction after notice to the purchaser, the measure of damages was declared to be the difference between the sum received and the contract price.

70

§ 1766. Vendee's breach of contract-Auction sales.-The measure of damages where the purchaser at an auction sale fails to complete his purchase is the difference between the sum bid and that bid at the resale; or the deficiency in the price caused by a second sale the conditions of which are not more onerous than those of the first sale; or the difference between the amount bid and the highest bid at a resale. But this rule is subject to the proviso that the subsequent sale must have been fairly conducted without resorting to any means to impair the salable value of the property. Said rule is further qualified to the extent that such difference between the bids is not conclusive upon the jury but only affords an aid to correctly assessing the damages. It is also decided, however, that the measure of damages, where the purchaser at an auction sale fails to complete the purchase, is the difference between the price paid by the purchaser and the value of the property, and not the difference between the price brought and that obtained on a resale, unless there is a condition in the terms of the sale authorizing such a mode for the ascertainment of damages, or unless the resale is made under the same conditions as the first sale." But the value of the property has been fixed as at the time of the