Opinion
September Term, 1859
R.H. Duell, for the appellant.
Myron Ellis, for the respondent.
The new trial was awarded on the ground that the plaintiff having paid nothing on account of the purchase, and the defendant having acted in good faith, the former, conceding that there was a breach of the contract, was only entitled to nominal damages. In actions upon contract where the facts are undisputed, the animus of the defendant is not usually a material element in determining whether he is liable, or in fixing the amount of the recovery. If the question were res nova, I should say that a vendor who had failed to perform his contract would lie under an equal obligation to indemnify the vendee, whether his intentions had been fair or perverse. The pecuniary injury to the vendee would be the same in either case; and the law does not in this class of actions profess to award damages by way of punishment or for the sake of example. This inclination of my mind as to the theory of the defence, has led me to look into the cases with considerable attention. Nurse v. Barns (1 T. Raym., 77), is a mere note of a case in which the defendant, in consideration of £ 10, had agreed to let the plaintiff enjoy certain iron mills for six months, and it appeared that they were worth but £ 20 per annum; and yet damages had been given to £ 500 by reason of the loss of stock laid in. The court held that the jury might well find special damages in addition to the £ 10, and the verdict was sustained. The special circumstances are not stated. Flureau v. Thornhill (2 Wm. Black., 1078), was the case of a sale at auction of a rent issuing out of leasehold premises, for a term of years. The plaintiff had paid down a deposit of 20 per cent. The case states that the defendant upon looking into the title "could not make it out," and thereupon offered the plaintiff to convey such title as he had, or to pay back the deposit with interest and costs. The jury allowed £ 20 for damages in addition to the deposit, contrary to the instructions of the judge; and a new trial was granted. The Chief Justice of the Common Pleas, DE GREY, said that upon a contract for a purchase, if the title proved bad, and the vendee was (without fault) incapable of making a good one, he did not think the purchaser could be entitled to any damages for the fancied goodness of the bargain he supposes he has lost. GOULD, J., and BLACKSTONE, J., expressed themselves of the same opinion, and the remaining judge, NARES, after some hesitation, concurred. In another case where the sale was by an auctioneer, and the sheriff's jury, after a default, had given the plaintiff a large sum for the loss of the bargain, the court set aside the verdict upon the defendants repaying the deposit with interest and costs, including the costs of investigating the title. ( Bratt v. Ellis, C.B., 45 Geo. III, reported in the Appendix to Sugden on Vendors, No. 7.) In the next case in the same book ( Jones v. Dyke), where the contract was made by the defendants as auctioneers, and the owner of the land denied their authority to sell, and it was shown that they had not authority (though it is to be inferred that they supposed they were authorized), the court refused to allow anything for the loss of the bargain, though the difference between the value of the land and the amount agreed to be paid was very large; but they charged the defendants with the plaintiff's traveling expenses of several journeys, and interest on the amount agreed to be paid, though nothing had been advanced. In Hopkins v. Grazebrook (6 Barn. Cress., 31), the defendant had put up at auction certain premises which he had contracted to purchase of another person, that other having only a contract of purchase from the owner. The plaintiff purchased at the auction and paid the deposit; but difficulties having arisen between the owner and the party contracting with him, no conveyance was executed and the defendant could not therefore give a title to the plaintiff. The judge instructed the jury that they were not obliged to confine their verdict to nominal damages, and they gave £ 70 damages. When the case came before the Court of King's Bench, ABBOT, Ch. J., said that upon the present occasion he would only say that if it was advanced as a general proposition that where a vendor cannot make a good title the purchaser should recover nothing more than nominal damages, he was by no means prepared to assent to it. He added that if it were necessary to decide that point he should desire to have time for consideration. He proceeded to distinguish the case from Flureau v. Thornhill, by showing that in that case the defendant was the owner of the estate, and though the title was objectionable, he offered to convey what title he had; while in the case before the court the defendant had improperly put up the estate at auction before he had got a conveyance, and that he did not and could not make such an offer as in the case relied on. The verdict was allowed to stand.
Several cases upon this question have been decided in the courts of this State. Baldwin v. Munn (2 Wend., 399), was an action on an executory contract by vendee against vendor, where the defendant had refused to convey for the reason that after making the contract, he had ascertained that his grantor had conveyed to another before he deeded the land to him. Entire good faith was shown on the part of the defendant. The court, Judge SUTHERLAND giving the opinion, held that the plaintiff was only entitled to nominal damages. The ground mainly relied on is the analogy between this class of actions and those upon covenants of title, in which it is well settled that the purchase money and interest only can be recovered, however valuable the purchase may have been. The authority of the case is perhaps somewhat weakened by the circumstance that there was another point in it upon which the court were likewise of opinion that the plaintiff could not recover. Peters v. McKeon (4 Denio, 546), was a case in its essential circumstances very similar to the one now before us. The defendant contracted to sell to the plaintiff his farm on Staten Island, and the conveyance was to be executed and a large part of the purchase money paid on the 1st day of May succeeding the time of making the contract; the plaintiff in the meantime being at liberty to go into possession. The plaintiff attended at the place appointed in the contract, prepared to pay the money, and the defendant did not appear; but there was some evidence tending to show that his failure was owing to a mistake. But the defendant could not make a perfect title, a small undivided interest — one twenty-fourth part — being owned by an infant, and as to this the defendant offered a covenant by a third person, that the infant should convey on coming of age. Shortly after the 1st of May, the defendant offered to give such title as he had, and tendered a deed which the plaintiff refused to receive, and removed from the farm. The plaintiff had in April removed from Columbia county on to the premises purchased, and had manured, plowed and planted portions of the land. The action was brought in the Superior Court of New York on the contract, the plaintiff claiming to recover only for his expenses in removing and for what he had laid out upon the land. The judge charged that if the defendant's omission to appear on the day named was inadvertent and unintentional, and he had, before the plaintiff had moved off, tendered a conveyance of such title as he had, the plaintiff would not be entitled to recover the special damages claimed. The verdict was for six cents damages. The judgment was affirmed by the Supreme Court, the opinion being given by Chief Justice BRONSON. He referred to the cases upon covenants of title, as Judge SUTHERLAND had done in Baldwin v. Munn, and stated his opinion to be that on an executory contract for the sale of lands which the vendor believed to be his own, and where there was no fraud on his part, if the sale falls through in consequence of a defect of title, the measure of damages is the same as it is in the case of an executed sale; that he could not recover anything for the loss of a good bargain, or for the expenses of removing on to or improving the land; that there was no reason in favor of an allowance for such expenses which would not equally apply if the title had failed after a conveyance had been given. He distinguished the case from those in T. Raymond, 6 Barnwell Creswell, and 17 Wendell, by showing that in the first and last the refusal to convey was perverse and with outexcuse, and that in the other the defendant, at the time when he made the contract, had no color of title. If the distinction thus taken is sound, the case of Trull v. Granger (4 Seld., 115), decided in this court, is not in conflict with the decision in Peters v. McKeon. It was an action upon an implied covenant in a lease for a term to commence at a future day, to the effect that the plaintiff should be let into possession at the commencement of the term. The defendant, without any apparent reason — unless to get a better rent — had leased the premises to other persons. The plaintiff recovered the difference between the rent agreed to be paid, and what the proof showed to be the yearly value of the premises for the term, and the judgment was affirmed. It was a clear case of a breach of contract from perverse and selfish motives.
The judgment in Brinckerhoff v. Phelps (24 Barb., 100) was, as I understand it, placed upon the distinction established in 2 Wendell and 4 Denio, of a contract made with a knowledge on the part of the vendor that he had no title, or of a dishonest refusal to convey because a better price could be obtained from another purchaser. The learned judge who delivered the opinion does, it is true, express some dissatisfaction with the doctrine laid down in those cases, as well as with that establishing the rule of damages in actions upon covenants of title, but without intending, as I think, to overrule them.
In the present case no want of good faith on the part of the defendant is found by the referee, or disclosed by the evidence. He was apparently desirous of completing the sale, and there is no reason to doubt but that he believed himself to have a good title when he made the contract. The premises were incumbered at that time it is true, but he had it in his power to extinguish the incumbrances, as he did before the conveyance was tendered. The case is precisely within the decision of Peters v. McKeon, and whatever doubts I might have had upon the doctrine there established, as an original question, I think it safer to adhere to that precedent than to change the rule.
The damages were given for the expenses of removing from Broome county, as well as because the plaintiff had to give up, as he claims, the personal property. If there was a right to recover for the latter item, but not for the former, the order for a new trial was right. But I think there was no color for a verdict respecting the personal property. It was delivered by the defendant to the plaintiff pursuant to the provisions of the contract, and the latter might safely have kept it when the defendant failed to perform the other part of the agreement. He surrendered it voluntarily, and cannot now complain of the defendant for that cause.
I am in favor of affirming the judgment of the Supreme Court, and of giving final judgment in the case pursuant to the stipulation.
SELDEN, J., was absent; COMSTOCK, J., was for affirmance, because the plaintiff did not apprise the defendant of his real objection to the title, which he might have obviated by procuring a conveyance from his father. He expressed no opinion upon the principal question above discussed. All the other judges concurred with DENIO, J.
Judgment absolute against the appellant.