Lommen v. Danaher (1917) 165 Wis. 15, 161 N. W. 14. Wyoming. Johnson v. McMullin (1889) 3 Wyo. 237, 4 L.R.A. 670, 21 Pac. 701; Francis v. Brown (1915) 22 Wyo. 528, 145.Pac. 750.

England. Hopkins v. Grazebrook (1826) 6 Barn. & C. 31, 108 Eng. Reprint, 364. Canada.

Loney v. Oliver (1888)

21 Ont. Rep. 89.

(It should be noted that, in some of the jurisdictions represented in the foregoing group, the rule is not applied where the vendor has acted in good faith. See infra, III. a. In other jurisdictions the rule is applied regardless of the vendor's good faith. See infra, III. a.)

In Caple v. Crane (1920) 13 Ohio App. 317, where the vendee was held entitled to recover the difference between the market value of the land and the contract price, it was found that the vendor was not able fully to perform his obligation to convey the land, but the basis for this finding does not appear.

It is said in Maxon v. Gates (1908) 136 Wis. 270, 116 N. W. 758, that the general rule for the measure of damage in an action by the vendee against the vendor for breach of contract for the sale of real estate is the value of the land that the vendor contracted to sell, estimated at the time the contract was broken, less what the vendee agreed to pay therefor. In Kirkpatrick v. Downing (1874) 58 Mo. 40, 17 Am. Rep. 678, where the measure of damage is held to be the difference between the contract price and the market value of the land, the rule was asserted that this measure of damage applied where there had been a wilful breach of the contract by the vendor, or where he disabled himself from performing the contract, or contracted to sell the real estate knowing at the time that he had no title thereto. However, compensation for the loss of the vendee's bargain is not taken into account in assessing the vendee's damage, where the contract breached was oral. Thus, in Dumars v. Miller (1859) 34 Pa. 319, where the vendor breached a parol contract for the sale of land, the 48 A.L.R.-2.

measure of damage was held to be the amount of purchase money paid, with interest and expenses, including expenses and trouble incurred by the vendee in endeavoring to procure a title, but it was held that in the absence of fraud he was not entitled, also, to recover damages for the loss of his bargain. So, it is held in Welch v. Lawson (1856) 32 Miss. 170, 66 Am. Dec. 606, that damages cannot be recovered for breach of a parol agreement for the sale of land, to the extent of compensation for the loss of the land or the bargain, although compensation may be had for the vendee's trouble, loss of time, and expense occasioned by the vendor's fraud or bad faith. And see IV.

c. Value of the real estate less amount unpaid on purchase price.

It has been held that where the vendee has paid a portion or the whole of the purchase price, either in money or its equivalent, and the vendor thereafter breaches the contract to convey, the vendee, in an action to recover damages for the breach of the contract, is entitled to recover the value of the premises at the time the conveyance was demanded, less the sum unpaid upon the contract. This rule for assessing the damage, in result, is similar to the preceding rule. The intention in either case is to compensate the vendee for the loss of his bargain.

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Michigan. Hammond v. Hannin (1870) 21 Mich. 374, 4 Am. Rep. 490. Mississippi. Gridley v. Tucker (1844) Freem. Ch. 209.

Missouri. Kirkpatrick v. Downing (1874) 58 Mo. 32, 17 Am. Rep. 673; Krepp v. St. Louis & S. F. R. Co. (1903) 99 Mo. App. 94, 72 S. W. 479; Cape Girardeau & C. R. Co. v. Wingerter (1907) 124 Mo. App. 426, 101 S. W. 1113.

ment incorporated in a lease disabled himself from carrying out the contract with the vendee).

Wyoming. Johnson v. McMullen (1889) 3 Wyo. 237, 4 L.R.A. 670, 21 Pac. 701.

In New Jersey, where the vendee in an executory contract has fully performed upon his part, his measure of recovery for breach by the vendor has been held to be the value of the land, apparently without reference to any question of good faith upon the part of the vendor. Rutan v. Hinchman (1860) 29 N. J. L. 112, subsequent appeal in (1864) 31 N. J. L. 496; Fairchild v. Llewellyn Realty Co. (N. J.) supra. In the latter case the consideration for the vendor's agreement was a bond and mortgage assigned by the vendee.

In Boyd v. Vanderkemp (N. Y.) supra, it is held that, in equity, the vendee's damage for nonperformance of an executory contract for the sale of land is the value of the land and improvements made by him thereon at the time of filing his bill, less the unpaid purchase money and interest.

In Hammond v. Hannin (Mich.) supra, the court said that while the ordinary measure of damages for breaching a covenant to sell real estate is the consideration money and interest, with perhaps, also, the cost of investigating the title, yet, where a party contracts to sell when he cannot make a title, or, having title, refuses to convey, or disables himself from conveying, or otherwise acts in bad faith, he is remitted to his general liability. The rule is, then, the same in relation to real as to personal property, and the measure of damages is the fair value of the land at the time of the breach.

In considering the measure of the vendee's damage for breach by the vendor of an executory contract to convey land in consideration of services to be performed, the court in McDowell v. Oyer (Pa.) supra, said: "He can recover as much as will make him whole; as much as will compensate him for the injury which the other party has committed against him in refusing to do what he prom

ised. This can never be determined without reference to the value of the land. That measure is always the minimum standard of damages, and the verdict may be swelled beyond it by proof of misconduct in the vendor, or special injury resulting to the vendee from the loss of the bargain. There are different ways of getting at the same thing. When the price is agreed on in numero [in Latin], the land is prima facie taken to be worth as much as the money which was to be given for it. In an ordinary case, therefore, the vendee is compensated by recovering back so much of the purchase money as he has paid; or by nominal damages if he has paid nothing. But he may prove that it rose in value after the contract, or that it was worth more at the time of the contract than he agreed to give, and, if he does so, the vendor must respond for the difference"-citing Hopkins v. Lee (1821) 6 Wheat. (U. S.) 109, 5 L. ed. 218.

In Lowe v. M'Donald (1821) 3 A. K. Marsh. (Ky.) 354, 13 Am. Dec. 181, it is held that the price given for the land is the criterion of damages, and where that is not shown, but the value of the land at the time of the sale is shown, this amount may be presumed to indicate the value.

In Newsom v. Harris (1832) Dudley (Ga.) 180, where the measure of damages was held to be the value of the land at the time of the breach, the value was fixed at the price for which the vendor sold it to another person, being considerably in advance of the amount the vendee had paid.

In Buechler v. Olson (1922) 194 Iowa, 245, 189 N. W. 741, it was held that where the vendor repudiated the contract before the date fixed for performance, and the vendee promptly brought suit, the measure of damage was to be based upon the value of the land at the time the vendee brought suit, rather than upon the value of the land at the time fixed for the performance of the contract. The court said: "From the moment that the plaintiff elected to claim damages, and brought his action thereon, he became wholly released from further obliga

tions of the contract. He was at liberty to ignore the same wholly, and to use his resources for other investment. He was not bound to keep his tender good, nor to keep the contract alive. When he brought his suit for damages, his election of remedies was irrevocable. His remedy became fixed as an action for damages. His right to an action was mature, if he chose to make it so, and he was entitled to bring his action forthwith. If his right of action was mature and suable, his measure of damages was necessarily accrued and mature also. If the land had depreciated in value after the beginning of his suit, and before the 1st day of March, he could not be prejudiced thereby. He would be entitled to measure his damage by the price at which he could have sold his purchase on the day that he brought his suit. His cause of action neither diminished nor increased pending suit. We deem it clear that his damage should have been measured upon the basis of the value of the land at the time he began his suit." III. Effect of good faith of the vendor.

a. In general.

As heretofore indicated, in some jurisdictions the rule obtains that where the vendor in an executory contract for the sale of land is guilty of no bad faith or fraud, but the sale fails in consequence of a defect in his title, the measure of the vendee's damage is substantially the same as in the case of an executed sale. If the vendee has paid any part of the consideration, he may recover back the money, with interest; but he can recover nothing for the loss of his bargain.

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California. Sanders v. Lansing (1886) 70 Cal. 429, 11 Pac. 702; Dashaway Asso. v. Rogers (1889) 79 Cal. 212, 21 Pac. 742; Burks v. Davies (1890) 85 Cal. 110, 20 Am. St. Rep. 213, 24 Pac. 613; Boas v. Farrington (1890) 85 Cal. 535, 24 Pac. 787; Reynolds v. Borel (1890) 86 Cal. 538, 25 Pac. 67; Worley v. Nethercott (1891) 91 Cal. 512, 25 Am. St. Rep. 209, 27 Pac. 767; Southern P. R. Co. v. Painter (1896) 113 Cal. 247, 45 Pac. 320; Allen v. Globe Grain & Mill. Co. (1909) 156

Cal. 286, 104 Pac. 305; Conlin v. Osborn (1911) 161 Cal. 659, 120 Pac. 755; Crane v. Ferrier Brock Development Co. (1913) 164 Cal. 676, 130 Pac. 429; Hayt v. Bentel (1913) 164 Cal. 680, 130 Pac. 432; Hooe v. O'Callaghan (1909) 10 Cal. App. 567, 103 Pac. 175; Carter v. Fox (1909) 11 Cal. App. 67, 103 Pac. 910; List v. Moore (1912) 20 Cal. App. 616, 129 Pac. 962; Born v. Castle (1913) 22 Cal. App. 282, 134 Pac. 347; Taber v. Piedmont Heights Bldg. Co. (1914) 25 Cal. App. 222, 143 Pac. 319; Hay v. Hollingsworth (1919) 42 Cal. App. 238, 183 Pac. 582; Cherney v. Johnson (1925) 72 Cal. App. 725, 238 Pac. 150.

4 Iowa, 1, 66 Am. Dec. 107; Sawyer v. Warner (1873) 36 Iowa, 333; Yokom v. McBride (1881) 56 Iowa, 139, 8 N. W. 795; Emmert v. Jelsma (1921) 191 Iowa, 424, 182 N. W. 652; Reiger v. Turley (1911) 151 Iowa, 491, 131 N. W. 866; White v. Harvey (1916) 175 Iowa, 213, 157 N. W. 152. Kentucky. CRENSHAW v. WILLIAMS (reported herewith) ante, 5; Cox v. Strode (1811) 2 Bibb, 273, 5 Am. Dec. 603; Allen v. Anderson (1811) 2 Bibb, 415; Kelly v. Bradford (1814) 3 Bibb, 317, 6 Am. Dec. 656; Kaelin v. Rufenacht (1885) 6 Ky. L. Rep. 748; Rutledge v. Lawrence (1818) 1 A. K. Marsh. 396; Goff v. Hawks (1831) 5 J. J. Marsh. 341; Combs v. Tarlton (1834) 2 Dana, 464; Reid v. Reid (1911) 141 Ky. 402, 133 S. W. 219; Mann v. Campbell (1923) 198 Ky. 812, 250 S. W. 110.

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Louisiana. Brewer v. New Orleans Land Co. (1923) 154 La. 446, 97 So. 605; Hudson v. Tilly (1923) 154 La. 839, 98 So. 265; Baton Rouge Invest. Realty Co. v. Bailey (1925) 157 La. 838, 103 So. 184.

Maryland. Baltimore Permanent Bldg. & Land Soc. v. Smith (1880) 54 Md. 187, 39 Am. Rep. 374; Hartsock v. Mort (1892) 76 Md. 288, 25 Atl. 303; Horner v. Beasley (1907) 105 Md. 193, 65 Atl. 820.

Michigan. Hammond v. Hannin

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(1870) 21 Mich. 374, 4 Am. Rep. 490; Bartlett v. Smith (1906) 146 Mich. 188, 117 Am. St. Rep. 625, 109 N. W. 260. Montana. Willard v. Smith (1906) 34 Mont. 494, 87 Pac. 613; Ross v. Saylor (1909) 39 Mont. 559, 104 Pac. 864. (This measure of damage is expressly fixed by the Code of Montana.) New Jersey. Gerbert v. Sons of Abraham (1896) 59 N. J. L. 160, 69 L.R.A. 764, 59 Am. St. Rep. 578, 35 Atl. 1121; Mangonaro v. Kare (1913) 84 N. J. L. 408, 87 Atl. 94.

v.

New York. Baldwin v. Munn (1829) 2 Wend. 400, 20 Am. Dec. 627; Peters v. McKeon (1847) 4 Denio, 546; Conger v. Weaver (1859) 20 N. Y. 140; Bush v. Cole (1863) 28 N. Y. 261; Pumpelly v. Phelps (1869) 40 N. Y. 58, 100 Am. Dec. 463; Mack v. Patchin (1870) 42 N. Y. 167, 1 Am. Rep. 506; Margraf Muir (1874) 57 N. Y. 155; Cockcroft v. New York & H. R. Co. (1877) 69 N. Y. 201; Northridge v. Moore (1890) 118 N. Y. 419, 23 N. E. 570; Walton v. Meeks (1890) 120 N. Y. 79, 23 N. E. 1115; Elterman v. Hyman (1908) 192 N. Y. 113, 127 Am. St. Rep. 862, 84 N. E. 937, 15 Ann. Cas. 819; Davis v. William Rosenzweig Realty Operating Co. (1908) 192 N. Y. 128, 20 L.R.A. (N.S.) 175, 127 Am. St. Rep. 890, 84 N. E. 943; Occidental Realty Co. V. Palmer (1907) 117 App. Div. 505, 102 N. Y. Supp. 648, affirmed in (1908) 192 N. Y. 588, 85 N. E. 1113; Rose v. Adler (1914) 147 N. Y. Supp. 307, affirmed in (1914) 165 App. Div. 921, 150 N. Y. Supp. 1110; Schwimmer v. Roth (1920) 111 Misc. 654, 182 N. Y. Supp. 12; Klimas v. Brumbach (1921) 116 Misc. 299, 190 N. Y. Supp. 307; Giannini v. Foster (1922) 119 Misc. 343, 196 N. Y. Supp. 247; Kaufman v. Brennan (1908) 123 App. Div. 516, 108 N. Y. Supp. 503; Lewis v. Bergmann (1908) 110 N. Y. Supp. 1047; Feldblum v. Laurelton Land Co. (1912) 151 App. Div. 24, 135 N. Y. Supp. 349, affirmed in (1914) 210 N. Y. 594, 104 N. E. 1129; Grosso v. Sporer (1924) 123 Misc. 796, 206 N. Y. Supp. 227; Blate v. Clarry (1906) 50 Misc. 668, 99 N. Y. Supp. 463; Ruggerio v. Leuchtenburg (1908) 61 Misc. 298, 113 N. Y. Supp. 615; Place v. Dudley

(1899) 41 App. Div. 540, 58 N. Y. Supp. 671; Empire Realty Corp. v. Sayre (1908) 107 App. Div. 415, 95 N. Y. Supp. 371; Samuelson v. Glickman (1906) 113 App. Div. 654, 99 N. Y. Supp. 886; Hochstein v. Vanderveer Crossing (1912) 150 App. Div. 118, 134 N. Y. Supp. 950; Selkir v. Klein (1906) 50 Misc. 194, 100 N. Y. Supp. 449; Weil v. Radley (1898) 31 App. Div. 25, 52 N. Y. Supp. 398, affirmed in (1900) 163 N. Y. 582, 57 N. E. 1128. Pennsylvania. Bitner v. Brough (1849) 11 Pa. 127; Hertzog v. Hertzog (1859) 34 Pa. 418; Riesz's Appeal (1873) 73 Pa. 485; Burk v. Serrill (1876) 80 Pa. 413, 21 Am. Rep. 105; Hill v. Jones (1893) 152 Pa. 433, 25 Atl. 834; Rineer v. Collins (1893) 156 Pa. 342, 27 Atl. 28; Haney v. Hatfield (1913) 241 Pa. 413, 88 Atl. 680; Orr v. Greiner (1916) 254 Pa. 308, 98 Atl. 951; Stephens v. Barnes (1906) 30 Pa. Super. Ct. 127; Glasse v. Stewart (1907) 32 Pa. Super. Ct. 385.

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South Dakota. Dal v. Fischer (1906) 20 S. D. 426, 107 N. W. 534 (measure of damages fixed by Code). Texas. Sutton v. Page (1849) 4 Tex. 142; Hall v. York (1859) 22 Tex. 642; Wheeler v. Styles (1866) 28 Tex. 241; Garcia v. Yzaguirre (1919) Tex., 213 S. W. 236, reversing on another point (1915) Tex. Civ. App. —, 172 S. W. 139; Roberts v. McFadden (1903) 32 Tex. Civ. App. 47, 74 S. W. 105; Clifton v. Chartes (1904) 53 Tex. Civ. App. 448, 116 S. W. 120; Dobson v. Zimmerman (1909) 55 Tex. Civ. App. 394, 118 S. W. 236; Vaughn v. Farmers & M. Nat. Bank (1910) 59 Tex. Civ. App. 380, 126 S. W. 690; Kilborn v. Johnson (1914) Tex. Civ. App., 164 S. W. 1108; McDonald v. Whaley (1918) Tex. Civ. App. 207 S. W. 609 (and see same case, subsequent appeal, in (1921) - Tex. Civ. App. —, 228 S. W. 1013, which is modified on another point in (1922) 244 S. W. 596); Rascoe v. Myre (1918) Tex. Civ. App. - 202 S. W. 780; Armstrong v. James (1920) Tex. Civ. App., 220 S. W. 420; Henderson v. Jones (1921) Tex. Civ. App. 227 S. W. 736; Harris County Invest. Co. v. Davis (1921) Tex. Civ. App., 230 S. W. 761; Kelly

Tex.

v. Simon (1924) 262 S. W. 202. Virginia.

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Matthews v. La Prade (1921) 130 Va. 408, 107 S. E. 795; Davis v. Beury (1922) 134 Va. 322, 114 S. E. 773, 115 S. E. 527.

Washington.-Marsh v. Cavanaugh (1896) 15 Wash. 282, 46 Pac. 239; Davis v. Lee (1909) 52 Wash. 330, 132 Am. St. Rep. 973, 100 Pac. 752; Babcock, C. & Co. v. Urquhart (1909) 53 Wash. 168, 101 Pac. 713; Crosby v. Wynkoop (1910) 56 Wash. 475, 106 Pac. 175; Welch v. Hover-Schiffner Co. (1913) 75 Wash. 130, 134 Pac. 526; Seymour v. Jaffe (1914) 78 Wash. 1, 138 Pac. 276; Schaefer v. E. F. Gregory Co. (1920) 112 Wash. 408, 192 Pac. 968; Finch v. Sprague (1921) 117 Wash. 650, 202 Pac. 257; Crawford v. Smith (1923) 127 Wash. 77, 219 Pac. 855.

West Virginia. Mullen v. Cook (1911) 69 W. Va. 456, 71 S. E. 567; Hoon v. Hyman (1921) 87 W. Va. 659, 105 S. E. 925; Mooring v. Warnock (1924) 95 W. Va. 539, 121 S. E. 732. Wisconsin. Hall v. Delaplaine (1856) 5 Wis. 206, 68 Am. Dec. 57; Poposkey v. Munkwitz (1887) 68 Wis. 322, 60 Am. Rep. 858, 32 N. W. 35; Arentsen v. Moreland (1904) 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99 N. W. 790, 2 Ann. Cas. 628 (recognizing but not applying rule). And see MCFARLANE V. DIXON (reported herewith) ante, 1.

England. Flureau v. Thornhill (1776) 2 W. Bl. 1078, 96 Eng. Reprint, 635; Bain v. Fothergill (1870) L. R. 6 Exch. 59, affirmed in (1874) L. R. 7 H. L. 158; Gaslight & Coke Co. v. Towse (1887) L. R. 35 Ch. Div. 519; Baynes v. Lloyd [1895] 2 Q. B. 610, 15 Eng. Rul. Cas. 752 C. A.; Morgan v. Russell [1909] 1 K. B. 357 - Div. Ct.