Thus, if the refusal of the wife to execute the deed is a mere pretext, the result of collusion, at the instigation of the husband, to rid himself of an improvident contract, the price having risen in the intermediate time between making the agreement and its completion, he must respond for the difference in value. Justice and good policy require this to be the rule, for otherwise the advantage would be entirely on the side of a vendor, who would be often under great temptation to violate his contract, when the difference in price was so great as to excite his cupidity. A party must not be allowed to gain by a violation of his engagement. The difference is a plain and palpable one, and consists in the bona fides or mala fides of the transaction; from whatever cause the refusal to comply may proceed, it is that which determines the question whether the vendee can recover for the loss of his bargain."

In Clifton v. Charles (1909) 53 Tex. Civ. App. 448, 116 S. W. 120, in holding that, in an action ex contractu, the excess of the market value of the land at the time the contract was made or should have been performed, over the contract price, is not recoverable, where the vendor breaches a contract because unable to make title, the court said: "It seems to be settled law in this state that, where a vendor in a contract to convey land did not have title at the time the contract was made, and is, therefore, unable to make title, the purchaser is not entitled to recover the difference between the contract price and the market value, but is confined, if he has paid the purchase money, to the return thereof, with interest from date of payment, and such special damages as he may have incurred by reason of having been induced to enter into the contract; and, if he has not paid the purchase money, then he is confined to his special damages, which he must allege The principle

and prove.

stated is a corollary to the rule that the measure of damages for a breach of the covenant of seisin, where no interest has passed, is the consideration paid, with interest, which is based up

on the supposition that the grantee took nothing by the conveyance, for the reason that the grantor had no interest to convey. If, in cases where the vendor had no title, either at the time the contract was made, or between that date and the trial, the rule was otherwise than as just stated, for a breach of the covenant of seisin, 'then,' as is aptly said by counsel for appellant in their supplemental brief, 'the vendor could easily avoid its effect by delivering to the purchaser a warranty deed and accepting the purchase money."

The reasons advanced for making an exception to the general rule for assessing damages for breach of contract by the vendor are not approved of in several jurisdictions. Thus, in Doherty v. Dolan (1876) 65 Me. 87, 20 Am. Rep. 677, the court said: "The pecuniary damages are the same to the vendee, whether the motive of the vendor in refusing to convey is good or bad. It is a difficult thing to ascertain whether or not a vendor is actuated by good faith in his refusal to convey. There can easily be frauds and deceits about it. The vendor is strongly tempted to avoid his agree-. ment where there has been a rise in the value of the property. The vendee, by making his contract, may lose other opportunities of making profitable investments. The vendor knows, when he contracts, his ability to convey a title, and the vendee ordinarily does not. 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. The measure of relief afforded by our rule is a fixed and definite thing. The other rule is not easily applied to all cases, and the books are burdened with discussions and refinements in relation to the modifications and restrictions and qualifications which, in different jurisdictions, have been annexed to it."

It has been asserted that the innocent vendee has a choice of remedies for breach by the vendor of his contract to convey real estate. He may recover damages based upon the loss of his bargain, or he may recover the

amount he has paid on the purchase price. Seaver v. Hall (1897) 50 Neb. 878, 70 N. W. 373. It is pointed out: "The object of the law is to afford compensation, and not to punish, in civil cases, and the actual damage is the same, regardless of the motive of the vendor. We think, however, that the cases can be reconciled on a more logical basis. The vendor should not be permitted to speculate on his contract. If either rule of damages should be enforced to the exclusion of the other, he would be permitted to do so. If the rule of nominal damages alone prevails, then, if the land rises in value, the vendor may obtain the benefit of the increase by breaking his own contract, as by putting it out of his power to fulfil it. If the rule of substantial damages alone applies, the vendor, when the property has fallen in value, may keep the purchase money and the lot by repaying only the decreased value of the lot. The law will not permit a party to so speculate and reap a profit by violating his contract. We think the true rule to be that the law reposes in the innocent vendee an election either to treat the contract as rescinded, and recover back what he has paid, or to ask damages for the breach. In this case he relied on rescission, pleaded the payments made, and asked judgment therefor, thus exercising that election."

In Hartzell v. Crumb (1886) 90 Mo. 629, 3 S. W. 59, the court said: "It is to be remembered that in this country, especially in the western states, lands are quite as much the subject of trade as personal property. Titles for the most part are not complicated. Statute law has reduced conveyances to a great degree of simplicity. There is no good reason why one who undertakes to sell real property by a specified form of deed should not abide the terms of his contract. He can readily contract against any unexpected real or supposed defect in the title. So long as the vendee is willing to accept the deed bargained for, the vendor ought not to be relieved from paying an adequate compensation for breach of the contract. The supposed or real

defect in the title, and the question of good faith, or want of good faith, should not be considered. Adequate compensation requires that the vendee should be put in the same position, as near as can be done by the award of damages, that he would have been in, if the contract had been executed as agreed. Where the purchase money has not been paid, the measure of damages is the difference between the contract price and the value of the property at the date of the breach."

In Beck v. Staats (1908) 80 Neb. 482, 16 L.R.A. (N.S.) 768, 114 N. W. 633, the court said: "Where it is possible, and the wronged party demands it, equity will require a performance of the contract. And where a party by his contract undertakes to convey property, and is rendered unable or refuses to do so, the law will require him to respond in full compensatory damages; and it makes no difference whether he wilfully disregards his contract, or is prevented through no fault of his own from conveying the title called for by his contract. His liability is created by the contract. He agrees to convey. The contract is necessarily reciprocal. Is there any reason in law or in equity for relieving a grantor because he is disappointed in not obtaining title, any more than there could be for relieving a grantee because he had through no fault of his own, in obtaining the purchase price at the appointed time? It was the duty of the defendant, and his privilege, to provide in his contract against obstacles; and, if he undertakes without this precaution to convey title belonging to another, he does so at his peril. Any other rule would permit one to speculate in reference to the property of another, without incurring any liability on his own part, but, at the same time, bind his grantee irrevocably. The real issue of fact in the case at bar is whether the parties hereto made their contract contingent upon defendant obtaining the outstanding title. This issue was submitted to the jury under proper instructions. Defendant's theory was not sound in law, nor supported by

failed,

competent evidence, and the court. properly overruled his request for the instruction."

The rule is stated in Wells v. Abernethy (1824) 5 Conn. 222, that the measure of damages for breach by the vendor of his contract to convey land is the value of the land at the time fixed for performance, and interest. thereon from that time. The court said: "The consideration of the contract is never the rule of estimating the damages for the breach of an express agreement. When by reason of a failure on the part of one of the contracting parties, or other legal cause, the contract is rescinded, either absolutely, or at the election of the party injured, he may bring his suit for the consideration, and then it will be the measure of damages. But so long as the contract is open, and the action, as it necessarily must be, and as in this case it is, is brought upon it, the sum recoverable is the value of the thing stipulated, at the time when, and the place where, it should have been performed."

It is said in Hopkins v. Lee (1821) 6 Wheat. (U. S.) 109, 5 L. ed. 218: “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 has 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 contract be for the sale of 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 withheld, the vendor ought to make good to him the difference."

In Tracy v. Gunn (1883) 29 Kan. 508, the court queried: "Why should the good faith of the vendor diminish the actual damages which the vendee

has sustained by reason of the breach of the contract?"

In Johnson v. McMullin (1889) 3 Wyo. 237, 4 L.R.A. 670, 21 Pac. 701, after stating that, where the vendor wrongfully repudiated the contract, the proper measure of the vendee's damage was the value of the property at the time the deed ought to have been delivered, less the amount of the purchase money due, the court said that in case of a failure of the title, and suit upon the warranty, the rule is manifestly different. In that case the purchaser has taken the title of his grantor, whatever it may have been.

IV. Effect of election by vendee to recover purchase price paid.

As to right to rescind an executed contract conveying land because of mistake of fact as to title, and recover the purchase price, see annotation in 36 A.L.R. 482.

For cases where contract is within Statute of Frauds, and vendor refuses to convey, see infra, VI. g.

There is but little conflict of judicial opinion as to the right of a vendee of land under an executory contract to recover the amount he has paid on the purchase price, where, without fault on his part, the contract fails, see supra, I. As heretofore pointed out,

whatever conflict there is relates to the right of the vendee to have included, as an element of damage, compensation for the loss of his bargain. In practically all jurisdictions the venIdee may, at his option, recover the amount he has paid on the purchase price. This amount has been recovered either under a count for money had and received, or as an element of damages for breach of the contract. Where the vendee successfully claims a rescission of the contract, the amount he has paid on the purchase. price is generally recovered under a count for money had and received. In the following cases, the amount the vendee had paid on the purchase price was recovered upon one of the foregoing grounds:

United States. Everett v. Mansfield (1906) 78 C. C. A. 188, 148 Fed.

374, 8 Ann. Cas. 956; Gerstell v. Shirk (1913) 127 C. C. A. 41, 210 Fed. 223; Howard v. Linnhaven Orchard Co. (1913; D. C.) 228 Fed. 523; GoodrichLockhart Co. v. Sears (1919; D. C.) 270 Fed. 971; Tudor v. Raudabaugh (1922; D. C.) 278 Fed. 254; Cooper v. Brown (1841) 2 McLean, 495, Fed. Cas. No. 3,191.

Alabama.-Skinner v. Bedell (1858) 32 Ala. 44; Flinn v. Barber (1879) 64 Ala. 193; Chandler v. Wilder (1926) Ala., 110 So. 306; Sherman v. Good (1926) Ala. App. 109 So.

893.

Arkansas. Evans v. Ozark Orchard Co. (1912) 103 Ark. 212, 146 S. W. 511; Mays v. Blair (1915) 120 Ark. 69, 179 S. W. 331.

California. Sanders v. Lansing (1886) 70 Cal. 429, 11 Pac. 702; Boas v. Farrington (1890) 85 Cal. 535, 24 Pac. 787; Reynolds v. Borel (1890) 86 Cal. 538, 25 Pac. 67; Allen v. Pockwitz (1894) 103 Cal. 85, 42 Am. St. Rep. 99, 36 Pac. 1039; San Diego Constr. Co. v. Mannix (1917) 175 Cal. 548, 166 Pac. 325; Kerr v. Reed (1918) 39 Cal. App. 11, 179 Pac. 399, affirmed on appeal from Superior Ct. in (1921) 187 Cal. 409, 202 Pac. 142; Lemle v. Barry (1919) 181 Cal. 6, 183 Pac. 148; National Pacific Oil Co. v. Watson (1920) 184 Cal. 216, 193 Pac. 133; Peloian v. Waldman (1921) 54 Cal. App. 116, 201 Pac. 344; Cherney v. Johnson (1925) 72 Cal. App. 725, 238 Pac. 150.

Connecticut. Lyon v. Annable (1822) 4 Conn. 350; Janulewycz v. Quagliano (1914) 88 Conn. 60, 89 Atl. 897; Rabinovitz v. Marcus (1923) 100 Conn. 86, 123 Atl. 21.

District of Columbia. Green v. Reeves (1917) 47 App. D. C. 83. Georgia. Lightfoot v. Brower (1910) 133 Ga. 766, 66 S. E. 1094; Higgins v. Kenney (1925) 159 Ga. 736, 40 A.L.R. 685, 126 S. E. 827; Clark v. Powell (1923) 30 Ga. App. 198, 117 S. E. 250; Mehrtens v. Knight (1923) 29 Ga. App. 390, 115 S. E. 506; Jones v. Clemons (1926) 35 Ga. App. 552, 133 S. E. 744.

Idaho. Marshall v. Gilster (1921) 34 Idaho, 420, 201 Pac. 711; Richards v. Jarvis (1925) 41 Idaho, 237, 238 Pac. 887. Illinois.

Hurd v. Denny (1855) 16 Ill. 492; Smith v. Lamb (1861) 26 1 ́ Ill. 396, 79 Am. Dec. 381; Demesmey v. Gravelin (1870) 56 Ill. 93; Baston v. Clifford (1873) 68 Ill. 67, 18 Am. Rep. 547; Bryson v. Crawford (1873) 68 Ill. 362; Clark v. Weis (1877) 87 Ill. 438, 29 Am. Rep. 60; Eggers v. Busch (1895) 154 Ill. 604, 39 N. E. 619; Smith v. Treat (1908) 234 Ill. 552, 85 N. E. 289; Swetitsch v. Waskow (1890) 37 Ill. App. 155; Des Moines & N. W. Real Estate & Loan Co. v. Beale (1898) 78 Ill. App. 40; Michalsky v. Pisano (1916) 199 Ill. App. 571; Weiss v. Clamitz (1917) 203 Ill. App. 246; O'Brien v. Quirk (1917) 204 Ill. App. 448.

Iowa. Breja v. Pryne (1895) 94 Iowa, 755, 64 N. W. 669; Mathers v. Christianson (1915) Iowa, -, 154 N. W. 455; White v. Harvey (1916) 175 Iowa, 213, 157 N. W. 152; Culley v. Dixon (1925) 199 Iowa, 136, 201 N. W. 582; Lahner v. Schaum (1924) 198 Iowa, 1388, 201 N. W. 80; Larson v. Metcalf (1926) Iowa, 45 A.L.R.

344, 207 N. W. 382.

Kansas. Kimball v. Bell (1892) 47 Kan. 757, 28 Pac. 1015, later appeal in (1892) 49 Kan. 173, 30 Pac. 240; Custenborder v. Cunningham (1926) 121 Kan. 416, 247 Pac. 879.

Kentucky. - Bullitt v. Eastern Kentucky Land Co. (1896) 99 Ky. 324, 36 S. W. 16; Elliott v. Walker (1911) 145 Ky. 71, 140 S. W. 51; Mann v. Campbell (1923) 198 Ky. 812, 250 S. W. 110; Shemwell v. Carper (1905) 27 Ky. L. Rep. 997, 87 S. W. 771; Gayle v. Troutman (1907) 31 Ky. L. Rep. 718, 103 S. W. 342.

born (1878) 126 Mass. 32; Linton v. Allen (1891) 154 Mass. 432, 28 N. E. 780; Kares v. Covell (1902) 180 Mass. 206, 91 Am. St. Rep. 271, 62 N. E. 244; Lodi v. Goyette (1914) 219 Mass. 72, 106 N. E. 601; Libman v. Levenson (1920) 236 Mass. 221, 22 A.L.R. 560, 128 N. E. 13; Downey v. Levenson (1924) 247 Mass. 358, 142 N. E. 85; Buckley v. Meer (1925) 251 Mass. 23, 146 N. E. 227.

Atkinson

Michigan. v. Scott (1877) 36 Mich. 18; Robinson v. Batzer (1917) 195 Mich. 235, 161 N. W. 879; Robinson v. Campbell (1923) 222 Mich. 111, 192 N. W. 644.

Minnesota. Bennett v. Phelps (1867) 12 Minn. 326, Gil. 216; Goetz v. Walters (1885) 34 Minn. 241, 25 N. W. 404; Lancoure v. Dupre (1893) 53 Minn. 301, 55 N. W. 129; Johnson v. Herbst (1918) 140 Minn. 147, 167 N. W. 356; Brown v. California & W. Land Co. (1920) 145 Minn. 432, 177 N. W. 774; Engel v. Mahlen (1922) 153 Minn. 1, 189 N. W. 422; Lutz v. Fults (1923) 155 Minn. 207, 193 N. W. 119; Joslyn v. Irwin Dick Co. (1926) Minn. 209 N. W. 889. Mississippi. Davis V. Heard (1870) 44 Miss. 50; Wilson v. Cox (1874) 50 Miss. 133.

Missouri.-Barton v. Rector (1842) 7 Mo. 524; Langford V. Caldwell (1871) 48 Mo. 508; Ryan v. Dunlap (1892) 111 Mo. 610, 20 S. W. 29; Legrotta v. Pittsburgh Plate Glass Co. (1920) Mo. App. 220 S. W. 705; Benson v. Watkins (1926) Mo. 285 S. W. 407; Huggins v. Safford (1896) 67 Mo. App. 469; Downing v. Anders (1918) Mo. App., 202 S. W. 297; Sanders v. Sheets (1926) Mo. App., 287 S. W. 1069.

Nebraska. Rath v. Wilgus (1923) 110 Neb. 810, 195 N. W. 115; Durland

New Jersey. - Eisler v. Halperin (1916) 89 N. J. L. 278, 98 Atl. 245; Reutler v. Ramsin (1917) 91 N. J. L. 262, 102 Atl. 351; Goldstein v. Ehrlick (1924) 96 N. J. Eq. 52, 124 Atl. 761; Kurtz v. Busch (1925) - N. J. L. —, 128 Atl. 552; Dichter v. Isaacson (1926) N. J. L. 132 Atl. 481; Modern Home Realty Co. v. Lang (1926) N. J. L. - 133 Atl. 389; Lloyd v. Weinstock (1926) N. J. L. 135 Atl. 65. New York.

Fletcher V. Button

(1850) 4 N. Y. 396; Moore v. Williams (1889) 115 N. Y. 586, 5 L.R.A. 654, 12 Am. St. Rep. 844, 22 N. E. 233; Wetmore v. Bruce (1890) 118 N. Y. 319, 23 N. E. 303; Judson v. Wass (1814) 11 Johns. 525, 6 Am. Dec. 392; Wetmore v. Bruce (1886) 22 Jones & S. 149; Uhl v. Loughran (1888) 14 N. Y. Civ. Proc. Rep. 344, 2 N. Y. Supp. 190; Hemmer v. Hustace (1889) 51 Hun, 457, 3 N. Y. Supp. 850; Hewison v. Hoffman (1889) 15 Daly, 176, 4 N. Y. Supp. 621; Stone v. Thaden (1890) 16 Daly, 280, 10 N. Y. Supp. 236; Porterfield v. Payne (1890) 57 Hun, 591, 32 N. Y. S. R. 1106, 11 N. Y. Supp. 31; Ingalls v. Hahn (1891) 59 Hun, 620, 12 N. Y. Supp. 786; Droge v. Cree (1891) 27 Jones & S. 271, 14 N. Y. Supp. 300; Priessenger V. Sharp (1891) 27 Jones & S. 315, 14 N. Y. Supp. 372; Alkus v. Goettmann (1891) 60 Hun, 470, 15 N. Y. Supp. 183; Flanagan v. Fox (1893) 6 Misc. 132, 26 N. Y. Supp. 48, affirmed in (1895) 144 N. Y. 706, 39 N. E. 857; Zorn v. McParland (1894) 8 Misc. 126, 28 N. Y. Supp. 485, affirmed in (1895) 11 Misc. 555, 32 N. Y. Supp. 770; Flynn v. McKeon (1856) 6 Duer, 203; Tompkins v. Seely (1859) 29 Barb. 212; Gibert v. Peteler (1862) 38 Barb. 488; Pringle v. Spaulding (1868) 53 Barb. 17; Thomas v. Wickmann (1861) 1 Daly, 58; Timby v. Kinsey (1879) 18 Hun, 255; Smith v. Rogers (1886) 42 Hun, 110, affirmed in (1890) 118 N. Y. 675, 23