Theodore Sedgwick.

A treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) online

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the conveyance of a legal title. . . . The general principle
does not depend on whether the vendor's supposed title was a
legal one or not."

The doctrine is generally followed; and the vendor is given
damages for loss of the bargain where at the time he made
the contract he knew he had no complete title to the land,^"* un-
less the vendee also knew the facts. ^'^ But in a few jurisdictions
the vendee is not allowed the value of his bargain even in such

§ 1012. Substantial damages always recoverable— General
rule in America.

// the defendant fails to convey because he has not a good title, he
is always liable in substantial damages. This is commonly
called the United States Supreme Court rule, and represents

^* Alabama: Hamaker v. Coons, 117 than its actual value. Held, under the

Ala. 603, 23 So. 655. Louisiana doctrine that consequences

California: Kiger v. McCarthy Co., not contemplated are recoverable where

10 Cal. App. 308, 101 Pac. 928. there is bad faith, and in view of the

{Contra where the defect in title is the modification of Flureau v. Thornhill in

wife's inchoate right of dower. Yates cases of bad faith, the plaintiff might

;;. James, 89 Cal. 474, 26 Pac. 1073.) recover not merely the difference be-

Utah: Dunshee v. Geohegan, 7 Utah, tween the contract price and the value,

113, 25 Pac. 731. but the difference between the contract

Australia: Colonial Investment & price and what he was actually obliged

Agency Co. v. Cobain, 14 Vict. L. R. to pay to get the land from the owner.

740. ^5 Iowa: Eggert v. Pratt, 126 la. 727,

In Toulaine E. F. Admr. v. Baccich & 102 N. W. 786.

DeMontluzin, 129 La. 000, 56 So. 371, New York: EHis v. Salomon, 57 App.

the defendants made contract for sale Div. 118, 67 N. Y. Supp. 1025.

of a large tract of land to plaintiff. «•= jjall v. York, 22 Tex. 601; Clifton

They knew they had no title to part of v. Charles, 53 Tex. Civ. App. 448, 116

it, and plaintiff was obliged to buy this S. W. 120.
part from the owners at a price greater


one extreme of the series of principles of which the highest Eng-
lish court had adopted the other extreme. It seems to be the
correct one on principle. It may be said in its favor that it is
unjust to hold the vendee to his contract to pay, if, before the
contract is to be performed, the land decreases in value, while, if
it increases in value, the vendor is liable only for nominal dam-
ages; that it is the object of courts of justice to carry out the
contracts of parties, or to put them in the same position as if the
contract had been carried out ; that if the vendor wished to pro-
tect himself from liability for a patent defect in his title, he
could easily have done so in his contract, and if he chose to
agree absolutely to convey, he should be held responsible for
his failure, since the promisee was entitled to change his posi-
tion on the faith of the agreement.

The leading case is Hopkins v. Lee,^^ in which the court said :
"The rule is settled in this court, that in an action by the
vendee for a breach of contract on the part of the vendor for not
delivering the article, the measure of damages is its price at the
time of the breach. The price being settled by the contract,
which is generally the case, makes no difference, nor ought it to
make any; otherwise the vendor, if the article have risen in
value, would always have it in his power to discharge himself
from his contract, and put the enhanced value in his own pocket.
Nor can it make any difference in principle whether the con-
tract be for real or personal property, if the lands, as is the case
here, have not been improved or built on. In both cases the
vendee is entitled to have the thing agreed for at the contract
price, and to sell it himself at its increased value. If it be with-
held, the vendor ought to make good to him the difference.
This is not an action for eviction." *^^

This rule is now the prevailing one in the United States.^^

''^ Hopkins w. Leo, 6 Wheat. 109, 118, a more failure to convey where the

5 L. ed. 2 IS. eonsideralion money has not been

8« In Baldwin v. Munn, 2 Wend. .390, paid."

407, 20 Am. Dec. G27, speaking of this "o United States: Harten v. LoefHer,

case, Sutherland, J., said: "It will be 212 U. S. 397, 53 L. cd. 5G8, 29 Sup. Ct.

perceived that this was substantially 351; Hampton Stave Co. v. Gardner,

a case of exchange of lands. Very dif- 154 Fed. 805, 83 C. C. A. 521.

ferent consideral ions may he applicable Alalxnua: Pinkston v. Huie, 9 Ala.

to such a case from the ordinary case of 2.52; Whiteside v. Jennings, 19 Ala.




In Lawrence v. Chase ^° the defendant agreed to reconvey a farm
to the plaintiff. He conveyed it to a third party and refused

784; Phelan v. Tomlin, 164 Ala. 383, 51
So. 382.

Arkansas: Kompner v. Cohn, 47 Ark.
519, 58 Am. Rop. 775.

Connecticut: Wells v. Abernethy, 5
Conn. 222; Lyon v. Katten, 80 Conn.
718, 69 Atl. 534.

Georgia: Bryant v. Hambrick, 9 Ga.
133; Irwin v. Askew, 74 Ga. 581.

Illinois: Buckmastcr v. Grundy, 2
111. 310; Gale v. Dean, 20 111. 320; Dady
V. Condit, 188 111. 234, 58 N. E. 900, 209
111. 488, 70 N. E. 1088; White v. Hig-
gins, 130 111. App. 404.

Indiana: Lewis v. Lee, 15 Ind. 499;
Case V. Wolcott, 33 Ind. 5 (overruling
Blackwell v. Lawrence Co., 2 Blackf.

Kentucky: Duncan v. Tanner, 2 J. J.
Marsh. 399; Whitworth v. Pool, 96

5. W. 880, 29 Ky. L. Rep. 1104; Plum
V. Mitchell, 16 Ky. L. Rep. 162, 26 S.
W. 391; Bryant v. Everley, 22 Ky. L.
Rep. 345, 57 S. W. 231.

Louisiana: Doriocourt v. Lacroix, 29
La. Ann. 286.

Maine: Robinson v. Heard, 15 Me.
296, 33 Am. Dec. 614; Warren v.
Wheeler, 21 Me. 484; Russell i'. Cope-
land, 30 Me. 332.

Massachuseits: Loomis v. Wadhams,
8 Gray, 557; Brigham v. Evans, 113
Mass. 538; Hallett v. Taylor, 177 Mass.

6, 58 N. E. 154; Boyden v. Hill, 198
Mass. 477, 85 N. E. 413.

Minnesota: Skaaraas v. Finnegan, 31
Minn. 48 (senible); Fleckton v. Spicer,
63 Minn. 454, 65 N. W. 926.

Missouri: Hartzell v. Crumb, 90 Mo.
629, 3 S. W. 59; Turner v. Lord, 92 Mo.
113, 4 S. W. 420; Krepp v. St. Louis &
S. F. R. R., 99 Mo. App. 94, 72 S. W.

Montana: Cartin v. Hammond, 10
Mont. 1, 24 Pac. 627.

Nebraska: Seavex v. Hall, 50 Neb.
878, 70 N. W. 373; Beetem v. Follmer,

87 Neb. 514, 127 N. W. 858; Violet v.
Rose (Neb.), 58 N. W. 216; Nolde v.
Gray, 73 Neb. 373, 102 N. W. 759, 104
N. W. 165; Beck v. Staats, 80 Neb. 482,
114 N. W. 633, 16 L. R. A. (N. S.) 768.

North Carolina: Lee v. Russell, 8 Ired.
526; Nicholl v. Freeman, 11 Ired. 99;
Le Roy v. Jacobsky, 136 N. C. 443, 48
S. E. 796.

Oregon: Mackey v. Olssen, 12 Ore.
429, 8 Pac. 357.

Rhode Island: Barbour v. Nichols, 3
R. I. 187.

Tennessee: Hopkins v. Towell, 5
Yerg. 305; Shaw v. Wilkins, 8 Humph.
647,653, 49 Am. Dec. 692; Clarke v.
Locke, 11 Humph. 300 (semble).

Utah: Dunshee v. Geoghegan, 25
Pac. 731.

Washington: Cade v. Brown, 25 Pac.

Wisconsin: Muenchow v. Roberts,
77 Wis. 520, 46 N. W. 802; Brink v.
Mitchell, 135 Wis. 416, 116 N. W. 16.

In Newsom v. Harris, Dudley (Ga.),
180, an action on a bond to make titles
to land, a breach was proved, and the
question was as to the measure of dam-
ages. The plaintiff gave three hundred
dollars for the land, and the defendant
sold it for six hundred dollars. The ver-
dict was for the price paid for the land
by plaintiff; and the question argued
was, whether the price paid with in-
terest or the value at the time of the
breach, was the true measure of dam-
ages. The court adopted the latter
rule, and set aside the verdict. In a
peculiar case in Tennessee, where one
got up void proceedings in partition
under which a sale was had, it was held
that the purchaser's measure of dam-
ages against him, whether the intention
had been fraudulent or not, was in
either case the consideration money
and interest. Key v. Key, 3 Head, 448.

™ 54 I\Ie. 196.

2124 SALE OF REAL ESTATE § 1012a

to complete his contract with the plaintiff when called upon.
It was held that the plaintiif could recover the value of the
farm.^^ In another case in Maine, Doherty v. Dolan/^ the
whole question was reviewed and the rule of Hopkins v. Lee
adopted. The measure of damages was declared to be the ex-
cess of the value of the land at the time of the breach over the
amount owed by the vendee on his contract, and that this
rule held good although the defendant was disabled from con-
veying by discovering incumbrances which he had known noth-
ing of. Flureau v. Thornhill was disapproved. Peters, J., said:
''We think the rule we are disposed to adhere to, as adapted
to all cases, a reasonable one. The pecuniary damages are the
same to the vendee, whether the motive of the vendor in re-
fusing to convey is good or bad. . . . The vendor is strongly
tempted to avoid his agreement, where there has been a rise in
the value of the property. . . . The vendor can provide in his
contract against such a contingency as an unexpected inability
to convey. He can also liquidate the damages by agreement."
So where lands were to be exchanged, the plaintiff having
conveyed, recovers the value of the land he was to get; "^^ and
where he has not conveyed, the difference in value of the two
parcels.'^'* And where the land was to be paid for in labor, the
measure of damages is the difference in value of the labor and
services. ^'^ Where land was to be conveyed in settlement of
litigation, and the settlement was made by the plaintiff, but
the land was not conveyed, the measure of damages was held
to be the value of the land.'^^

§ 1012a. Rescission.

Where the vendor is found to have no title, or refuses to con-
vey, the vendee may repudiate the contract and recover the

^1 Scheerschmidt v. Smith, 74 Minn. If the contract fixes the relative

224, 77 N. W. 34. values of the lands, the values so fixed

" G5 Me. 87, 91, 20 Am. Rep. 677. are controlling: Shirk v. Lingeman, 26

" Connecticut: Wells v. Abernethy, 5 Ind. App. 630, 59 N. E. 94L

Conn. 222. ^^ Bierer v. Frctz, 32 Kan. 329.

Illinois: Plummer v. Rigdon, 78 111. " Chartier v. Marshall, 56 N. H. 478,

222, 20 Am. Rop. 261. 22 Am. Rop. 491.

Iowa: Devin v. Himcr, 29 la. 297. '» Combs v. Scott, 76 Wis. 662, 45 N.

Minnesota: Greenwood v. lloyt, 41 W. 532, 20 Am. St. Rep. 92.
Minn. 381.

§ 1012a



amount of money he has already paid for the land, with inter-
est," and the amount expended for permanent improvements
on the land,^^ and is not chargeable with the rents and profits,
though he has been in possession of the land, if the vendor had
no title at the time, since he is chargeable to the true owner; ^®
but if he is not so chargeable, the rents and profits must be de-
ducted. ^"^ If on the other hand the vendor rescinds the con-
tract for the vendee's failure to pay the purchase-money, or
other default, he is entitled to compensation for the use of the
land, measured by its rental value; ^^ but the vendee is not en-
titled to recover purchase-money paid by him upon the con-
tract.^- Where the rescission is by mutual consent, the vendor
recovers compensation for rents and profits, the vendee recovers

" Alabama: Hawkins v. Merritt, 109
Ala. 261, 19 So. 589.

Indiana: Shryer v. Morgan, 77 Ind.

Kansas: Doom v. Curran, 52 Kan.
360, 34 Pac. 1118.

Kentucky: Combs v. Tarlton, 2 Dana,
464; Seamore v. Harlan, 3 Dana, 410;
Herndon v. Venable, 7 Dana, 371.

Massachusetls: Kares v. Covell, 180
Mass. 206, 62 N. E. 244.

Missouri: Dunnica v. Sharp, 7 Mo.

New York: Moore v. Williams, 115
N. Y. 586, 22 N. E. 233, 12 Am. St.
Rep. 844, 5 L. R. A. 654.

Tennessee: Mason v. Lawing, 10 Lea,

Texas: Wheeler v. Styles, 28 Tex.
240; Mill v. Watson, 39 Tex. 375; Rob-
erts V. McFaddin, 74 S. W. 105.

So of rescission for fraud. Lauben-
gayer v. Rohde (Mich.), 133 N. W.

^* Alabama: Foster v. Gressett, 29
Ala. 393; Hawkins v. Merritt, 109 Ala.
261, 19 So. 589.

North Carolina: North v. Bunn, 128
N. C. 196, 38 S. E. 814.

Tennessee: Mason v. Lawing, 10 Lea,

^^ Kentucky: Herndon v. Venable, 7
Dana, 371.

Missouri: Dunnica v. Sharp, 7 Mo.

^^ Alabama: Foster v. Gressett, 29
Ala. 393.

North Dakota: Kicks v. State Bank,
12 N. D. 576, 98 N. W. 408 (mortgage
eventually foreclosed).

Pennsylvania: Minard v. Beans, 64
Pa. 411.

Tennessee: Mason v. Lawing, 10 Lea,

^1 Arkansas: West v. Waddill, 33
Ark. 575.

Georgia: Blitch v. Edwards, 96 Ga.
606, 24 S. E. 147.

Kentucky: Worthington v. Campb(!ll,
8 Ky. L. Rep. 416, 1 S. W. 714.

Oregon: Sievers v. Brown, 34 Ore.
454, 56 Pac. 171, 45 L. R. A. 642.

Texas: Gulf, C. & S. F. R. R. v. Dun-
man, 85 lex. 176, 19 S. W. 1073.

*^ California: Glock v. Howard & W.
C. Co., 123 Cal. 1, 55 Pac. 713, 43 L. R.
A. 199, 69 Am. St. Rep. 17.

Iowa: Downey v. Biggs, 102 la. 88,
70 N. W. 1091.

Maine: Rounds v. Baxter, 4 Me. 454.

Nebraska: Patterson v. Murphy, 41
Neb. 818, 60 N. W. 1 (overruling Eaton
V. Redick, 1 Neb. 305).

New York: Lawrence v. Miller, 86
N. Y. 131; Battle v. Rochester City
Bank, 5 Barb. 414.


purchase-money paid with interest, and compensation for per-
manent improvements.^^

The rule is the same where a contract is repudiated by the
vendor because it does not satisfy the statute of frauds. If the
vendee has paid for the land, he recovers the amount paid.^'*
If he has been in possession, having paid for the land, rent and
interest are taken as equivalents, and he recovers his payments
without interest, ^^ and the value of permanent improvements
made by him,^^ at least in equity.^^ If he has paid for the
land by the conveyance of other land, or by the performance
of services, he recovers the value of the land so conveyed,^^ or
of the services.^^ If, however, in spite of the statute the vendor
is willing to perform, the vendee cannot recover back his
purchase-money or the value of his consideration furnished.^"

§ 1013. Reduction of damages.

"WTiere the defendant, holding a bond from the owner of a
land certificate, had covenanted to "locate" the same so as
to cover certain land, and convey the tract thus acquired to
the plaintiff, but was compelled to break his covenant through
the default of the obligor, it was held, in Texas, in an action
by the vendee for breach of this covenant, that the fact that

83 Smith V. Stewart, 83 N. C. 406. Miss. 830 (see Welch v. Lawson, 32

See WilUams v. Wilson, 4 Dana (Ky.), Miss. 170, 66 Am. Dec. 606).

507. Texas: Thouvenin v. Lea, 26 Tex.

In Easton v. Crossey, 100 Cal. 75, 34 612.
Pac. 622, where the vendee was in de- " New York: Parkhurst v. Van Court-
fault at the time of rescission, he was landt, 1 Johns. Ch. 273. (See Gillet v.
allowed to recover purchase money Maynard, 5 Johns. 85, 4 Am. Dec. 329.)
paid less damage to vendor by the Tennessee: Mathews v. Davis, 6
breach; but it is submitted that if this Humph. 324 (see Herring v. Pollard, 4
had been a true case of rescission noth- Humph. 362, 40 Am. Dec. 653).
ing could have been deducted for dam- ** Maine: Bassett v. Bassett, 55 Me.
ago by the breach. 127.

** Minnesota: Payne v. Hackney, 84 Michigan: Nugent v. Teachout, 67

Minn. 195, 87 N. W. 608. Mich. 571, 35 N. W. 254.

New York: Gillet v. Maynard, 5 »» Matthews v. Matthews, 133 N. Y.

Johns. 85, 4 Am. Dec. 329. 679, 31 N. E. 519.

Virginia: Payne v. Graves, 5 Leigh, ^ North Carolina: Durham Consoli-

561. dated Land & Imp. Co. v. Guthrie, 110

« Patton V. Kennedy, 1 A. K. Mar.'^h. N. C. 3S1, 21 S. E. 9.'-)2.

(Ky.) 380, 10 Am. Dec. 744. Vermont: Shaw v. Shaw, 6 Vt. 69.

•* Mississippi: Cain v. Kelly, 57


the plaintiff had ''located" another certificate on the same
land, would go in reduction of the damages.^ ^

§ 1014. Payment in advance.

In every jurisdiction it appears to be the law that where the
entire consideration has been advanced, the value of the land
at the time it should have been conveyed, is the measure of
damages.^- And where the consideration for the conveyance
has been given by the plaintiff, though not in money, the value
of the land may be recovered. ^^

The foregoing principle is sometimes regarded as sustained
by the case of Wall v. London R. P. Co.^" This was an action
for failure to give title to an entrance to the plaintiff's premises
as agreed, and the circumstances were peculiar. The reason of
the failure seems to have been the failure of a third party to
perform his agreement to convey to the defendant. The plain-
tiff had advanced the consideration. Substantial damages were
given. Blackburn, J., said:

''We think the rule in Flureau v. Thornhill cannot possibly
apply to a case like the present, where it appears on the face of
the agreement that the defendants had not yet got any title, and
that no abstract of title was to be waited for, but that the plain-
tiff was forthwith to execute his part of the agreement, and it
appears did in fact execute it in a way that can never be undone
and which, as it is found, has conferred on the defendants sub-
stantial and permanent benefit. ... It is impossible to sup-
pose that the plaintiff intended to part with it (the considera-
tion) merely for a promise that the defendants should hereafter
grant him this entrance if they should succeed in getting title
thereto, and that, if they could not, he was to have nothing.
We think that we may well hold that the true meaning of this

"King V. Gray, 17 Tex. 62; ace, Vermont: Boardman v. Keeler, 21

Kerley v. Richardson, 17 Ga. 602. Vt. 77.

^^ Kentucky: Doty v. Doty, 118 Ky. See ^^ngf^and: Robertson?;. Dumaresq,

204, 80 S. W. 803, 2 L. R. A. (N. S.) 2 Moore P. C. (N. S.) 66; 13 W. R.

713. 280.

New Jersey: Rutan v. Hopper, 24 *' Cape Girardeau & C. R. R. v.

N. J. L. (5 Dutch.) 112. Wingerter, 124 Mo. App. 426, 101 S.

Pennsylvania: Cox v. Henry, 32 Pa. W. 1113.

18. »* L. R. 9 Q. B. 249.

2128 SALE OF REAL ESTATE §§ 1015, 1016

particular agreement is, that the promise as between the plain-
tiff and defendants was absolute, but that the covenant to be
inserted in the lease, which would run with the land and regulate
the rights of the assignees of the lease, was to be restricted."

This decision is put by Mr. Mayne on the ground that there
was an express agreement to make a good title,^^ and Black-
burn, J., apparently takes that view also. We have discussed
elsewhere ^^ the question of the effect of payment in advance in
the case of personal property, and need only repeat here that
there seems to be no good reason why it should ever change the
rule of damages.

§ 1015. Nichols V. Freeman.

A peculiar and not very satisfactory rule was laid down in
Nichols V. Freeman.^^ The plaintiff purchased a lot of land for
$8,000, and paid the greater part of the purchase-money. The
plaintiff was let into possession, and the defendant executed a
bond in the penalty of $10,000, conditioned to convey upon the
pajnuent of the balance of the purchase-money. The plaintiff
was evicted by the judgment creditors of the defendant, and
the property sold by the plaintiff for $2,500, which was admitted
to be the real value of the property at the time. Here the court
refused to allow the plaintiff to recover the amount of the
purchase-money, as if he had repudiated the contract and sued
for money had and received. "Here the plaintiff seeks to re-
cover compensation; what sum will put him in as good a con-
dition as if the contract had been performed? In that event he
would have got property, which is worth $2,500, but he would
have been forced to pay the balance of the purchase-money and
interest. He has not paid this latter amount, and his damage
is the difference between that sum and the value of the property
which by the case agreed is $207.80;" and to that sum the re-
dress was limited.

§ 1016. Quality or quantity deficient.

Where the title to part of the land contracted to be sold
proves not to be in the vendor, but the vendee chooses to com-
plete the purchase, the abatement from the purchase-money

"^ Maync on Damages, 4th ed., 192. "'Nichols v. Freeman, 11 Ired.

^ See ch. xxxv. (N. C.) 99.

§ 1017 EXPENSES 2129

will be that proportion of the purchase-money which the value
of the part unconveyed bears to that of the part conveyed.''^
limited, however, by the actual value of the part unconveyed. ^^
In a few cases, especially where there is not mere error in meas-
urement but failure of title, the actual value of the deficient
land is allowed. ^'^^ If the deficiency is not in quantity, but in
defect of title, the reduction is of the amount by which the
value of the land is diminished. ^°^ So where the grantor's wife
does not release dower, the purchase price is to be diminished
by the value of the inchoate dower right. ^"^^ So where the land
contained a saw-mill, which the defendant contracted to be of
a power of which it fell short, the abatement from the purchase-
money is the difference in value of the mill and such a mill as it
was contracted to be.^°^

§ 1017. Expenses.

The expenses necessarily incurred by the plaintiff are gen-
erally allowed under the rule of Flureau v. Thornhill, — for in-
stance, the expense of searching the title and preparing the
necessary papers. ^""^ Under the rule of the United States Su-

^* Alabama: Stowe v. Bozeman, 29 tracts fails, the reduction is in pro-
Ala. 397; Kelly v. Allen, 34 Ala. 663. portion to the values of the tracts re-

Illinois: Hiner v. Richter, 51 111. 299. spectively. Gates v. Parmley, 93 Wis.

Pennsylvania: Firmstone v. Spaeter, 294, 66 N. W. 253, 67 N. E. 739.

1 Pa. Dist. 39. '"^ Indiana: Williams v. Frybarger, 9

Virginia: Blessing v. Beatty, 1 Rob. Ind. App. 558, 37 N. E. 302 (lease).

287; Walsh v. Hale, 25 Gratt. 314. Nebraska: Portsmouth Sav. Bank v.

Wisconsi7i: Gates v. Parmley, 93 Yeiser, 81 Neb. 343, 116 N. W. 38

Wis. 294, 66 N. W. 253, 67 N. E. 739. (market value not affected, damages

See Indiana: Shirk v. Lingeman, 26 nominal).

Ind. App. 630, 59 N. E. 941. North Carolina: Spruill v. Davenport,

'" Moses V. Wallace, 7 Lea (Tenn.), 5 Ire. 145 (defeasible fee).

413. '"- Indiana: Hazelrig v. Ilutson, 18

'^'^ Alabama: Clements v. Beatty, 87 Ind. 481; Puterbaugh v. Puterbaugh, 7

Ala. 238, 6 So. 151. Ind. App. 280, 296, 33 N. E. 808.

Kentucky: Lemmon v. Brown, 4 /owa.' Leach r. Forney, 21 Iowa, 271,

Bibb, 308. 89 Am. Dec. 574; Presser v. Hilden-

Pennsylvania: Patterson v. Arthurs, brand, 23 Iowa, 483.

9 Watts, 152. "" Walker v. France, 112 Pa. 203, 5

Virginia: Walsh v. Hale, 25 Gratt. Atl. 208.

314. ''''• California: Yates v. James, 89

Ireland: Connor v. Potts, [1897] 1 Cal. 474, 26 Pac. 1073.

Ir. 534. loiva: Warren v. Chandler, 98 la.

Where the title to one of several 237, 67 N. W. 242.



preme Court it would seem that they should not be allowed
unless there was an agreement to pay them, for they would have
been equally incurred whether the contract had been per-
formed or broken. The argument that they have proved use-
less expenses by reason of the breach of contract is of no avail,
for under that rule the damages are such as will put the plaintiff
in the same position as if the contract had been performed.

The expenses of a previous suit between the parties, in which
the vendor was defeated, beyond the costs taxed in that suit,
cannot be recovered. ^"^ New Haven & Northern Railroad v.
Hayden ^°^ was an action for breach of a contract to secure the
plaintiff railroad company a right of way. It was held that
the plaintiff could recover as damages expenditures for taking
land for the road-bed and whatever else was necessary for the
proper construction of the road-bed, but not for land taken for
stations; and costs and expenses of settling the damages for
taking the land, which included not only the ordinary legal
costs and witnesses' fees, but attorney's and counsel fees in
procuring the settlement. The court distinguished Leffingwell
V. Elliott and Reggio v. Braggiotti,^"^ on the ground that in
those cases the employment of counsel was not *'a direct and
necessary consequence of the breach of contract by the de-
fendants," while these proceedings were necessary. The court
further held that the plaintiffs could not recover expenses of
employing counsel before a committee of the legislature to ob-
tain proper legislation. ^°^

Montana: Willard v. Smith, 34 Mont. Pennsylvania: Dumars v. Miller, 34

494, 87 Pac. 613 (statutory). Pa. 319; Eberg v. Heisler, 12 Pa. Super.

Online LibraryTheodore SedgwickA treatise on the measure of damages, or, An inquiry into the principles which govern the amount of pecuniary compensation awarded by courts of justice (Volume 3) → online text (page 48 of 94)