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J. G. (Jabez Gridley) Sutherland.

A treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 2) online

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it and is unable to fulfill by reason of causes so known, as tbe
want of concurrence of other persons ; or if be has title and
refuses to convey, or disables himself from doing so by convey-
ance to another person, — in all sucb cases he is beyond tbe reach
of tbe principle of Flureau v. Tbornbill and is liable to full com-
pensatory damages, including those for tbe loss of the bargain.®'^

TO Rowley v. Hager, 63 Ore. 246. 1183; Thompson v. Sheplcr, 72 Pa.

M Hanover B. Co. v. Jacobs, 78 160; Rineer v. Collins, 156 Pa. 342;

N. Y. Misc. 410. Lyles v. Perrin, 134 Cal 417; Pu-

81 Loomia v. Wadhams, 8 Gray terbaujrh v. Puterbaugh, 7 Ind.
557. . App. 280, 296, citing the text ; War-

82 Ohio Valley Trust Co. v. Al- ren v. Chandler, 98 Iowa, 237; Mc-
li8on,^243 Pa. 201; Bowcn v. Speor, Murtry v. Blake, 45 Neb. 213; Boyd
— Tex. Civ. App. — , 166 S, W. v. DeLancey, 91 Hun 542; Ross v.



581]



VENDOR AND PUBCilASKlt.



-1989



This rule applies where the grantor expressly agrees to make a



Robinson, 12 Vict. L. R. 764; Colo-
nial I. & A. Co. V. Cobain, 14 id.
740 (the vendor knew he had no
title) ; Mailer v. Clayton, 1 West
Aust. L. R. 3 (the rule applied
was the expense of investigating the
title, the vendor knowing he had no
title; but for his omiBsion to pay
money or remove the obstacle to a
title he was liable for the loss of
the purchaser's bargain on a resale,
which was estimated by the value
of the land at the time of a bona
fide offer to purchase from him ) ;
Tracy v. Gunn, 29 Kan. 508; Dike-
man v. Arnold, 71 Mich. 656, 78
Mich. 455; Skaaraas v. Finnegan,
31 Minn. 48; Hartzcll v. Crumb, 90
Mo. 629; Brigham v. Evans, 113
iviass. 538; Sanford v. Cloud, 17
Fla. 532, 554; Plummer v. Rigdon,
78 111. 222, 20 Am. Rep. 261; Dun-
sliee v. C4eohegan, 7 Utah 113; Cade
v. Bro^n, 1 Wash. 401 ; Chartier v.
Marshall, 56 N. H. 478; Irwin v.
Askew, 74 Ga. 581; Snodgrass
v. RejTiolds, 79 Ala. 642; Taylor v.
Barnes, 69 N. Y. 430; Phillips v.
Herndon, 78 Tex. 378, 22 Am. St.
59; Muenchow v. Roljerts, 77 Wis.
520; Carver v. Taylor, 35 Neb. 429;
Allen v. Atkinson, 21 Mich. 351;
Dustin V. Newcomer, 8 Ohio 49 ;
Trull V. Granger, 8 N. Y. 115; En-
gel v. Fitch, L, R. 3 Q. B. 314, 4 id.
659; Martin v. Wright, 21 Ga. 504;
Cox V. Henry, 32 Pa. 18; Burr v.
Todd, 41 id. 206; Grissom v. Sor-
rell, 8 Humph. 372; Foley v. Mc-
Kecgan, 4 Iowa 1, 66 Am. Dec. 107;
Svveem v. Steele, 5 Iowa 352;
Punipelly v. Phelps, 40 N. Y. 59,
100 Am. Dec. 463; Brinckerhoflf v.
Phelps, 24 Barb. 100; Hopkins v.
Lee, 6 Wheat. 109, 5 L. ed. 218;
Drake v. Baker, 34 N. J. L. 358;



Driggs V. Dwight, 17 Wend. 71, 31
Am. Dec. 283; McNair v. Compton,
35 Pa. 23; Wilson v. Spencer, 11
Leigh, 261; Graham v. Hackwith, 1
A. K. Marsh. 423; Bush v. Cole, 28
N. Y. 261, 84 Am. Dec. 343 (sale
by auctioneer who was not author-
ized) ; Burwell v. Jackson, 9 id.
535; Dean v. Roesler, 1 Hilt. 420;
Lewis v. Lee, 15 Ind. 499; White
V. Madison, 26 N. Y. 124, 84 Am.
Dec. 343; Roberts v. McFaddin
(Tex. Civ. App.) ; Stephenson v.
Harrison, 3 Litt. 170; Kirkpatrick
V. Downing, 58 Mo. 32; Pringle v.
Spaulding, 53 Barb. 17; Gibbs
V. Champion, 3 Ohio 335; Scott v.
Reikel, 15 Up. Can. C. P. 200;
Plummer v. Simonton, 10 Up. Can.
Q. B. 220; Vallicr v. Walsh, 6 Up.
Can. C. P. 459; McConnell v. Dun-
lop, Hardin, 41, 3 Am. Dec. 723;
Gerault v. Anderson, 2 Bibb. 543 ;
Davis V. Lewis, 4 id. 456; Morgan
v. Stearns, 40 Cal. 434; Bartram
V. Hering, 18 Pa. Super. 395, ap-
plying the same rule to a lessor
who acted in bad faith; Lyon v.
Katten, 80 Conn. 718; Cartin v.
Hanimond, 10 Mont. 1, citing the
text; Mobley v. Lott, 127 Ga. 572,
citing the text; Kiger v. McCarthy,
Co., 10 Cal. App. 308; Harten v.
Loffler, 212 U. S. 397, 53 L. ed.
568; Phelan v. Tomlin, 164 Ala.
383; Fleckten v. Spicer, 63 Minn.
454, proof of fraud is not essential
to the application of this rule, dis-
approving a remark in Erickson v.
Bennet, 39 Minn. 320; Krcpp v. St.
Louis, etc. R. Co., 99 Mo. App. 94;
Leroy v. Jacobosky, 136 N. C. 443,
67 L.R.A. 977; Margraf v. Muir, 57
N. Y. 155; Millikan v. Hunter, 180
Ind. 149; Mclntyre v. Stockdale,
27 Ont. L. R. 460; Maneer v. San-



1990



SUTHERLAND ON DAMAGES.



[§ 581



good title ; ®' but not in an action at law where the invalidity of
the contract sued upon is made a defense." In a recent case a
vendor was subjected to the severer measure of damages for
delay in completing the transfer of the property, that being occa-
sioned by his lack of reasonable diligence in performing the
contract, and not because of any lack of, or defect in, title.®'
Where there was a breach by a vendor of a covenant to furnish
an abstract of title pursuant to a contract gTanting an option to
purchase land the same measure of damages was applied; the
court said it was not material that there should be either allega-
tion or proof that the vendee would have taken and paid for the
land if the abstract had been furnished. "It is said that the
damages for the breach should be limited to the cost of a cor-



ford, 15 Manitoba 181; Madden v.
Caldwell L. Co., 16 Idaho 59, 21
L.R.A.(N.S.) 332; Dubois v.
Bowles, 30 Colo. 44 (applying the
principle to a trustee who failed
to convey to a third party accord-
ing to his contract with the cestui
que trust) ; Buck v. Dwvall, 9 Ga.
App. 656; Conner v. Baxter, 124
Iowa 219; Boyden v. Hill, 198
Mass. 477; Vernam v. Wilson, 31
Pa. Super. 257; Huey v. Starr, 79
Kan. 781; Horner v. Beasley, 105
Md. 193; Herbert v. Hillman, 50
Wash. 83; Munson v. McGregor, 49
Wash. 276; Balkwill v. Spencer,
45 Wash. 600; Mullen v. Cook, 69 W.
Va. 456; Brink v. Mitchell, 135
Wis. 416; Arentsen v. Moreland,
122 Wis. 167, 65 L.R.A. 973, quot-
ing the text; Brown v. Honnis, 70
N. J. L. 260; Marsh v. Johnston, 125
App. Div. (N. Y.) 97; Goodman v.
Wolf, 95 App. Div. (N. Y.) 522; Ncp-
pach V. Oregon & C. R. Co., 46 Ore.
374, citing the text; Clerciue v. Mc-
Kay, 6 Ont. L. Vvr 51; Culhimbcr v.
Winter, 154 Iowa 263. See Watkins
V. American Nat. Bank, 134 Fed. 36,
67 C. C. A. 110; and Hilligas v.
Kuns, 86 Neb. 68, 20 L.K.A.(N.S.)



284, and Nebraska cases cited in
second note to sec. 584. The cited
case was against a vendor who sub-
sequently conveyed to a third per-
son who purchased bona fide, and
paid for a deed. That payment
was provable in mitigation of dam-
ages, but did not bar the action.

Where the disability to convey is
caused by the loss of title it is im-
material whether that loss resulted
from the vendor's voluntary act or
whether it was caused by .operation
of law. Nichols v. Freeman, 11
Ired. L. 99.

The refusal to convey land pur-
chased for anotlier is attended with
liability for its value when pay-
ment was tendered and for interest
from that date, less any deprecia-
tion in its value caused by the pur-
chaser. Kean v. Landrum, 72 S. C.
556.

83 Wall v. City of London R. P.
Co., L. R. 9 Q. B. 249; Taylor v.
Barnes, 69 N. Y. 430.

84 Matthews v. Mattlicws, 133 N.
Y. 679; Rincer v. Collins, 156 Pa.
342.

85 Jones V, Gardiner, [1902] 1
Ch. 191.



§ 581] VENDOR AKD PUKCHASEE, 1991

rect abstract, and that in any event evidence tluit the vendee
would not have taken the property was material in determining
the amount of damages. But the vendee's right to purchase was
limited by the contract to sixty days. He had paid $1,000 for
this option, and it was a valuable one. The vendor had cove-
nanted to deliver to him a correct abstract within a reasonable
time, and the vendee had the right to rely upon the performance
of this covenant by the vendor and to stake his option upon it.
He was not required to presume that the vendor would violate
his agreement and to act and to procure an abstract for him-
self upon that assumption. !Nor was the cost of such an abstract
the probable effect of the vendor's failure to furnish one. The
measure of damages for its breach of this covenant in the con-
tract was the natural and probable loss which the vendee would
sustain on account of that breach, and that was the value of the
option, the diiference between the value and the contract price
of the land, and the vendor could not lawfully take advantage
of its own wrong by proof that the vendee would not have real-
ized this value if it had performed its covenant." ^^ In a case
in ISTew York," Mason, J., thus discusses this rule of damages:
"There has never seemed to me to have been any very good
foundation for the rule which excuses a party from the per-
formance of his contract to sell and convey lands because he had
not the title which he had agreed to convey. There seems to
have been considerable diversity of opinion in the courts as to
the grounds upon which the rule is placed. In England the
rule seems to have been sustained upon the ground of an implied
understanding of the parties, that the parties must have con-
temjilated the difficulties attendant upon the conveyance. In
the leading case upon this subject,*^ Blackstone,' J., said:
'There contracts are merely upon condition frequently ex-
pressed, hut always implied, that the vendor has a good title,'
while in this country the rule is based upon the analogy between
this class of cases and actions for the breach of covenant of

86 Hampton S. Co. v. Gardner, 154 Y. 50, 100 Am. Doc. 46.S.

Fed. 805. 83 C. C. A. 421. 88 Flureau v. Tkornhill, 2 W. Bl.

87 1'nnipclly v. Phelps, 40 N. 1078.



1992 SUTIIEKLAXD OX DAMAGES. [§ 581

warranty of title.^^ The rule of damages in an action for a
breach of covenant of warranty of title is settled to be the con-
sideration paid and the interest; and jet this is an arbitrary
rule, and works great injustice many times, and the courts meet
with great embarrassment in settling it. These difficulties were
considered and well expressed in the leading case in this state,^°
in which the court said: 'To find a rule of damages in a case
like this is a work of difficulty. None will be entirely free from
objection, or will not, at times, work injustice. To refund the
consideration, even with the interest, may be a very inadequate
compensation when the property is greatly enhanced in value
and when the money might have been laid out to equal ad-
vantage elsewhere. Yet, to make this increased value the cri-
terion, where there has been no fraud, may be attended with
injustice, if not ruin. A piece of land is bought solely for the
pui*pose of agriculture, and, by some unforeseen turn of fortune,
it becomes the site of a populous city ; after which an eviction
takes place. Every one must perceive the injustice of calling
on a bona fide vendor to refund its value, and that few fortunes
could bear the demand. Who, for the sake of one hundred
pounds, would assume the hazard of repaying as many thous-
ands, to which the value of the property might rise by causes
unforeseen by either party, and which increase in worth would
confer no right on the gTantor to demand a further sura of the
grantee ?' There is still another class of cases where the rule of
simply refunding the purchase-money and the interest operates
with great hardship and injustice uj)on the purchaser. A. pur-
chases of B. a city lot for the purpose of building himself a
dwelling or buildings upon it and takes from B. a full cove-
nant deed of the premises, covenanting to assure, or warrant
and defend the title. The buildings are constructed at the
cost of thousands of dollars, and then B. is evicted by a para-
mount title ascertained to be in some one else. The recovery
of the money and six years' interest is not a very just or rea-

89 Baldwin v. Munn, 2 Wend. 90 Staata v. Ten Eyck, 3 Cai. Ill,

399, 20 Am. Dec. 627; Peters v. 2 Am. Dec. 254.
McKean, 4 Denio 546.



§ 581] VENDOR AND PURCHASER. 1993

sonable return in damages for the law to give one who holds
a covenant to make good and to defend the title. The reasons
assigned for this rule, in actions for breach of covenant of
warranty of title, can scarcely apply to these preliminary con-
tracts to sell and convey title at a future time. In the latter
case the vendee knows he has not got the title and that per-
haps he may never get it; and, if he will go on and make ex-
penditures under such circumstances, it is his o^^•n fault ; and,
besides, these preliminary contracts to convey generally have
but a short time to run, and there is seldom any such oppor-
tunity for the growth of towns or a large increase of value of
the property as there is in these covenants in deeds which run
with the land through all time. * * * These views are not
presented to induce the court to overrule or repudiate the
adjudged cases in our own courts upon this subject. They reach
back over a period of more than forty years, and have been too
long sanctioned to be now repudiated. I have referred to this
matter simply as furnishing an argument against, in any degree,
extending the rule and as a reason for limiting it strictly where
the already adjudged cases in our ovm courts have placed it."
In this case the party contracting as vendor was a trustee hav-
ing power to sell with the consent of a thiitl person. He made
an absolute contract in his own name; not being able to obtain
the necessary consent he was unable to perform and was liable
for the difference between the value of the land and the price
to be paid for it.

A similar case was determined in oSTew Jersey,^^ and not-
withstanding it has been overruled ^^ there, its doctrine is
applicable in jurisdictions in which the English rule is not
applied in its strictness. The vendor was not able to perform
because the consent and concurrence of his wife was necessarv.
Beasley, C. J., said : "The defendant in this suit knew when he
agreed to make a perfect title to this property that it was alto-
gether uncertain whether he would be able to do so, for his
ability to discharge his contract was dependent upon the con-
si Drake v. Baker, 34 N. J. L. 358. L. 160, 69 L.R.A. 764, 59 Am. St.
MGerbert v. Trustees, 59 N. J. 578.



1994 STITIIERLArc^D ON DAMAGES. [§ 581

sent of his ^\'ifc. With a full knowledge of his power of per-
formance being contingent, he entered into this absohite
stipulation, and I think this circumstance should take this case
out of the rule adopted in Flureau v. Thornhill. It may be
quite reasonable that an implicit understanding should grow up
between vendors and vendees of real estate that a vendor should
not be responsible for secret flaws in the title of the property
and that such understanding should assume the form of a rule
of law. But there seems no rational ground for the hypothe-
sis that a similar relaxation of the general law exists in those
cases in which a man agrees, in an absolute form, to do some
act which he knows he has not the power to do without the
assent of a third party. In the former class of cases there is
a semblance of good sense and public convenience in favor of
the application of the rule excluding the liability in question,
but in the latter class there is apparently none whatever.®^

This view is not acquiesced in by the Pennsylvania, Califor-
nia, Washington and Iowa courts. In the former state a wife
will not be indirectly coerced into a conveyance of her interest
in land by awarding exemplary damages — that is, damages in
excess of such as are compensatory under the English rule —
against her husband for the breach of his contract ; and his delay
in notifying the intending purchaser of her refusal to join in a
conveyance is not evidence of fraud ; it was important only
in determining the actual damage he sustained.^* It is ruled
in Washington that a party who contracts with a husband

93 Beck V. Staats, 80 Neb. 482, 94 Burk v. Senill, 80 Pa. 413, 21

16 L.R.A.(N.S.) 768; Puterbaugh Am. Rep. 105; Donner v. Redeii-
V. Puterbaugh, 7 Ind. App. 280, j^^^g,^^ gj j^^^,^ 209; Yates v.

2!)G; Plum v. Mitchell, 16 Ky. L. , on r^ i a- a ci ^

' ' '' James, 89 Cal. 4/4; Stephens v.

Rep 162

\ \ , . i. X 1 * Barnes, 30 Pa. Super. 127; Eggert

A vendor who has contracted to r oo

sell land in forgetfulness that one- v. Pratt, 126 Iowa 727 (the pur-
half of it is owned by his wife chaser of the interest of a minor
may not prove his bodily and ment- ^^\^^^ knows of the fact and the
al condition as bearing merely upon ,,^.^,^.,,5^^ ^j ^^ ^^der of court for

tlie question of his mistake and

,,..,. r ... .1 . , the conveyance thereof cannot, alter

good faith m forgetting that she *'

was part owner of it. Boydon v. refusal to make tlic order, recover
Hill, 198 Mass. 477. substantial damages).



§ 581]



VENDOR AND PURCHASER.



1995



to purchase community property, knowing it to l>e such, does
so with knowledge that the law forbids the latter to enter into
a valid contract for its sale unless his wife join him, and that
daiuages cannot be recovered for its breach. ^^ In some courts
the knowledge of the purchaser concerning the absence of title
in the vendor does not aflfect the right to recover for the loss of
his bargain.^^

The exemption of the vendor from the severer rule of dam-
ages does not extend beyond his inability to perform his con-
tract by reason of a defect in his title which was unknown to
him at the time he made his engagement to sell. This rule
will exclude all defaults that are wilful or which arise from
contingencies known to the vendor and of which he consciously
assumed the risk.^'^ In cases of this latter kind the contract
is either made or violated in bad faith or is speculative.^^ An
agreement for the exchange of lands, performed on one side, is
like a purchase after the consideration has been paid; and the



95 Holyoke v. Jackson, 3 Wash.
Ty. 235; Seymour v. Jaffe, 78 Wash.
1.

96 Arentsen v. Moreland, 122 Wis.
]67, 65 L.R.A. 973; Fletcher v.
Brewer, 88 Neb. 196. These cases
are not necessarily in conflict with
those which hold otherwise where
the relation of husband and wife
exists between tlie parties who must
execute the conveyance. Public
policy may require that the act of
tlu' wife shall be unconstrained.
Ill other cases there seems to be no
good reason why the vendor who
assumes to convey should be re-
lieved of full liability because tlie
purcliaser knew he was without
title. See Bitner v. Brough, 11 Pa.
127.

The knowledge of the purcliaser
tliat a conveyance can be made
only with judicial approval wliich
has been denied, is cause for limit-
ing the recovery to a nominal sum.
Eggcrt V. Pratt, 126 Iowa 727.



97 Drake v. Baker, 34 N. .J. L.
358; Crosby v. Wynkoop, 56 Wash.
475.

98 Mullen V. Cook, 69 W. Va. 4.')6 ;
Bryant v. Booth, 30 Ala. 311, 68
Am. Dec. 117; Clark v. Yocum, 116
Cal. 515; Ilartsock v. Mort, 76 Md.
281. See Gale v. Dean, 20 111. 320;
Dyer v. Dorsey, 1 Gill & J. 440;
Pinkston v, Huie, 9 Ala. 252; Gibbs
V. Jamison, 12 id. 820; Hammond
V. Hannin, 21 Mich. 374, 4 Am. Rep.
490; Thouvenin v. Lea, 26 Tex. 612;
Taylor v. Rowland, id. 293.

In Stuart v. Pennis, the Virginia
court applied the milder rule of
damages notwithstanding the vendor
broke his contract in order that a
better price might be obtained.
Tliis appears to be a departure
from earlier cases in that court.
See Wilson v. Spencer, 11 Leigh
201; Newbrough v. Walker, 8
Gratt. 16, 56 Am. Dec. 127.

In Sawyer v. Warner, 36 Towa
33."?, the milder measure of lial)ility



199G SUTHERLAND ON DAMAGES. [§ 581

value of the land agreed to be conveyed in exchange, at the time
when the con\-cjance should have been made, is the measure of
damaffes.^® With interest to the time of the trial.^ Where the
relative values of the lands to be exchanged have been agreed
upon they are a basis upon which a recovery may be had.^ In
Pennsylvania the severer measure of damages is applied only
in case of fraud in the origin of the contract ; where there is
no fraud the recovery is controlled by the money paid and the
expenses incurred in reliance on the contract.^ A purchaser
under a sealed contract not made for his benefit, but, as dis-
closed by it, for the benefit of a third party, may recover to the
extent of his liability to such a party arising from the inability
of the vendor to convey; on the other hand, if he gave such
party the benefit of the contract their relation was of a fiduciary
character, and may recover in his own name, for the benefit of
that party, the same damages the latter could have recovered if
it had been a party to the contract.* The purchaser of an equity
may recover the value of it, less the amount of the liens he
assumed responsibility for.^

§ 582. Elements of damage under the milder rule. Where
only nominal damages can be recovered for the loss of the bar-
gain the vendee is entitled to recover his deposit, any payments
he may have made on the contract of purchase with interest,

was favored where the defendant 2 Duer 153; Devin v. Himer, 29

undertook to procure title from a Iowa 297; Bender v. Fromberger, 4

third party. In Yokom v. McBride, Dall. 436, 1 L. ed. 898; Brown v.

58 id. 139, tlie severer rule was held Dickerson, 12 Pa. 372; King v. Pyle,

applicable, at the election of the 8 S. & R. 166. See Lacey v. Mar-

])urcha8er, he having paid for the ^^n, 37 Ind. 168.

land to which title was to be ob- j q^,,^^^ ^ g^ott, 76 Wis. 662, 20

tained; in lieu of that measure of j^^ g^ ^^ ^j^^ conveyance was

recovery, the consideration paid , , , , . -j x-

^' "^^ to have been made in consideration

might bo recovered.

99 Wells V. Abernethy, 5 Conn.
222; Plumnicr v. Rigdon, 78 111.

222, 20 Am. Rep. 261; Greenwood v. Parties.

Iloyt, 41 Minn. 381; Warren v. 2 Shirk v. Lingcman, 2(i Ind. App.

Chandler, 98 Iowa 237; Bierer ^^0.

V. Fretz, 32 Kan. 329; Dikeman v. 3 Rineer v. Collins, 156 Pa. 342.

Arnold, 71 Mich. 656; Burr v. Todd, 4 Boyden v. Hill, 198 Mass. 477.

41 Pa. 206; Faxton v. Davidson, B Hendrick v. Lowe, 85 Conn. 635.



of the settlement of actions and
matters of difference between the



§ 582]



VENDOR AND PURCHASEIE.



199'



and expenses incurred in investigating the vendor's title.^ But
interest will not be allowed where possession under the contract
of purchase has been enjoyed except for such time as there is a



6 Rose V. Adler, 147 N. Y. Supp.
307; Seymour v. Jaffe, 78 Wash. 1;
Cullumber v. Winter, 154 Iowa 263;
Justice V. Button, 89 Neb. 367, 38
L.R.A. (N.S.) 1; Dobson v. Zimmer-
man, 55 Tex. Civ. App. 394; Clark
V. Yocum, 116 Cal. 515; Wilson v.
Hendrix, 13 Ky. L. Rep. 687 (Ky.
Super. Ct. ) ; Kaplron v. Tucker, 35
App. Div. (N. Y.) 310 (and the sum
stipulated as damages) ; Eberz v.
Heisler, 12 Pa. Super. 338; Rineer
V. Collins, 156 Pa. 342; Perrin v
Reynolds, 12 Vict. L. R. 440; Ben
nett V. Latham, 18 Tex. Civ. App
403; Baltimore P. B. & L. Soc. v
Smith, 54 Md. 187, 39 Am. Rep
374; Northridge v. Moore, 118 N
Y. 419 (expenses incurred in ex
amining title recoverable although
both parties knew the vendor was
not possessed of the title, it being
supposed he would procure it) ;
Walton V. Meeks, 120 N. Y. 79;
Wetmore v. Bruce, 54 N. Y. Super.
149; Morgan v. Bell, 3 Wash. 554,

16 L.R.A. 614; Walker v. Moore,
10 B. & C. 416; Pounsett v. Fuller,

17 G. B. 660; Tyrer v. King, 2 Car.
& K. 149; Wilson v. White, 101
Cal. 453; Hooe v. O'Callaghan, 10
Cal. App. 567; Lloyd v. Sandusky,
203 111. 621; Krilling v. Cramer,
152 Mo. 431; Willard v. Smith, 34
Mont. 494 (under the statute and in
the absence of bad faith) ; Morton
V. Witte, 147 App. Div. (N. Y.) 94;
Reynolds v. White, 43 App. Div. (X.
Y.) 595; Maupai v. Jackson, 139
App. Div. (N. Y.) 524; Reid v.
Johnson (N. Y. Misc.), 121 Supp.
750; Ruggeno v. Leuchtenburg, 61
N. Y. Misc. 298; Blate v. Clary, 50
N. Y. Misc. 668; Samuelson v. Glick-
man, 113 App. Div. (N. Y.) 654;



Empire Realty Co. v. Sayre, 107
App. Div. (N. Y.) 415; Filbert
V. Behney, 45 Pa. Super. 24; Rob-
erts V. McFadden, 32 Tex. Civ. App.
47 (executing contract) ; Bridge v.
Calhoun, 57 Wash. 272; Babcock v.
Urquhart, 53 Wash. 168, quoting
the text; Vaughn v. Farmers' &
Merchants' Nat. Bank (Tex. Civ.
App.), 126 S. W. 690; Clifton v.
Charles, 53 Tex. Civ. App. 448. See
Southern P. L. Co. v. Arnold (Tex.
Civ. App.), 139 S. W. 917; Free-
man V. Falconer, 201 Fed. 785, 120
C. C. A. 32.

That measure of damages was
applied where a vendor made a col-
lateral agreement in good faith to
fill in a creek bordering on the
land sold, but was unable to do
so because he did not own the bed
of the creek. Hochstein v. Van-
derveer Crossings, 350 App. Div.
(N. Y.) 118.

In McConnel v. Hall, 3 P. & W.
53, a vendee paid down $100 on a



Online LibraryJ. G. (Jabez Gridley) SutherlandA treatise on the law of damages : embracing an elementary exposition of the law, and also its application to particular subjects of contract and tort (Volume 2) → online text (page 83 of 135)