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ried out upon the completion of the probate of the estate of W. J. McIntyre, and upon the furnishing of abstracts showing good and marketable title in said first parties, to be conveyed by warranty deed."

It appears that for some years prior to his death W. J. McIntyre had paid taxes on lots 8 and 9 and that after his death both of these lots were included in the inventory of his property. In August, 1920, plaintiff tendered $1,879.50, being the balance due for the two lots. Some months before this time defendants had learned that lot 8 belonged to the estate of Henrietta A. McIntyre and had never been owned by W. J. McIntyre. Plaintiff testified that at the time of the tender in August, 1920, the reasonable value of each lot was $2,200.

The answer admitted the making of the contract, alleged that each thought defendants to be the owner of lot 8 because of a mutual mistake, and prayed that the contract be reformed so as to include only the lot in fact belonging to defendants by virtue of the will of W. J. McIntyre, and, as so reformed, specifically enforced.

The trial court found as facts that plaintiff received his information as to the reputed ownership of the lots from his sister and from sources other than the defendants before negotiating for the purchase of the lots; that defendants received their information from the files of the probate court of Maricopa county, Arizona, and other sources; that defendants informed plaintiff that they were the residuary legatees under the will of W. J. McIntyre, and that the will was in the course of settlement; that defendants did not claim or assert ownership of the lots other than as such legatees, and that the contract was not to be carried out until defendants furnished an abstract after the settlement of the estate; that defendants did not make any false representations in regard to either lot; that each believed the lot to be included in the estate of W. J. McIntyre; and that

defendants, by virtue of being his legatees, would have good title.

The court held as matters of law that, since there was no element of tortious conduct on the part of defendants, "the plaintiff may recover such fractional part of the consideration paid as the value at the time of the purchase of the piece to which title fails bears to the value of the whole piece purchased," and that plaintiff should have a conveyance of lot 9 upon payment of $800. Judgment was entered accordingly, an allowance being made for certain outstanding bonds for street improvements, and costs being granted to neither party.

Messrs. Fisher & Geffs, for appellant:

The statements by defendants were made in respect to a matter where a duty was imposed upon them to make a statement which they knew to be true, or none at all, and they were statements in the making of which defendants acted either in fraud or in wanton recklessness, reaping a benefit, and from which plaintiff, acting in good faith, suffered a loss. Fraud is proved when it is shown that a false representation regarding the title to real estate has been made knowingly, or without belief in its truth, or recklessly with no knowledge upon the subject.

Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Kathan v. Comstock, 140 Wis. 427, 28 L.R.A.(N.S.) 201, 122 N. W. 1044; Knudson v. George, 157 Wis. 520, 147 N. W. 1003; Hurlbert v. T. D. Kellogg Lumber & Mfg. Co. 115 Wis. 225, 91 N. W. 673; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Tyner v. Cotter, 67 Wis. 482, 30 N. W. 782; Denis v. Nu-Way Puncture Cure Co. 170 Wis. 333, 175 N. W. 95; Miner v. Medbury, 6 Wis. 295.

Defendants'

misrepresentations, though innocently made, constitute actionable fraud.

Zunker v. Kuehn, 113 Wis. 421, 88 N. W. 605; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Denis v. NuWay Puncture Cure Co. 170 Wis. 333, 175 N. W. 95; First Nat. Bank v. Hackett, 159 Wis. 113, 149 N. W. 703; Montreal River Lumber Co. v. Mihills, 80 Wis. 540, 50 N. W. 507; Kathan v. Comstock, 140 Wis. 427, 28 L.R.A. (N.S.) 201, 122 N. W. 1044; Palmer v.

(176 Wis. 652, 187 N. W. 671.)

Goldberg, 128 Wis. 103, 107 N. W. 478; Bird v. Kleiner, 41 Wis. 134; Davis v. Nuzum, 72 Wis. 439, 1 L.R.A. 774, 40 N. W. 497.

In order to constitute actionable fraud it is not necessary that the false representation of defendants was the sole cause or inducement that led to the contract.

Darlington v. J. L. Gates Land Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447.

Where the representations which constitute fraud are matters of record, the wronged party is not chargeable with notice of the facts, but may rely on such representations, in the absence of knowledge of the truth, or want of ordinary care in respect to the matter.

Hall v. Bank of Baldwin, 143 Wis. 303, 127 N. W. 969; Darlington v. J. L. Gates Land Co. 142 Wis. 198, 135 Am. St. Rep. 1070, 125 N. W. 456; Palmer v. Goldberg, 128 Wis. 103, 107 N. W. 478; Kathan v. Comstock, 140 Wis. 427, 28 L.R.A. (N.S.) 201, 122 N. W. 1044.

In an action to recover damages based upon fraud the good faith and good intentions of defendants are not a defense, and therefore the evidence given by them was immaterial and should not have been admitted.

First Nat. Bank v. Hackett, 159 Wis. 113, 149 N. W. 703.

If the court concurs in the view that actionable fraud has been shown, which is the proximate cause of plaintiff's loss, the rule of damages that should be applied is that plaintiff is entitled to recover the actual loss or injury sustained by him in consequence of the loss of his bargain. The measure of such damages is the value of the land, estimated at the time the contract was broken, less what plaintiff agreed to pay therefor.

31 Cyc. 2084, 2085, 2108, 2111; McLennan v. Church, 163 Wis. 411, 158 N. W. 73; Lommen v. Danaher, 165 Wis. 15, 161 N. W. 14; Muenchow v. Roberts, 77 Wis. 520, 46 N. W. 802; Maxon v. Gates, 136 Wis. 270, 116 N. W. 758; Arentsen v. Moreland, 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99 N. W. 790, 2 Ann. Cas. 628; Krause v. Busacker, 105 Wis. 350, 81 N. W. 406; Gross v. Heckert, 120 Wis. 314, 97 N. W. 952; Tyner v. Cotter, 67 Wis. 482, 30 N. W. 782; Whitney v. Allaire, 1 N. Y. 306; Culver v. Avery, 7 Wend. 381, 22 Am. Dec.

586; Wardell v. Fosdick, 13 Johns. 325, 7 Am. Dec. 383; Ward v. Wiman, 17 Wend. 192; Sutherland, Damages, 3d ed. §§ 578, 581; Knudson v. George, 157 Wis. 520, 147 N. W. 1003; Darlington v. J. L. Gates Land Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447; Bird v. Kleiner, 41 Wis. 134; Miner v. Medbury, 6 Wis. 295; Smith v. Richards, 13 Pet. 26, 10 L. ed. 42.

After defendants had assured plaintiff of their ownership, and had entered into a written covenant to convey the lot, the equitable ownership thereof was settled in plaintiff.

Krakow v. Wille, 125 Wis. 284, 103 N. W. 1121, 4 Ann. Cas. 1016; Western Lime & Cement Co. v. Copper River Land Co. 138 Wis. 404, 120 N. W. 277. Messrs. Jeffris, Mouat, Oestreich, Avery, & Wood, for respondents:

The nature of the cause stated in a complaint must be determined by its prayer and the dominant facts alleged. Tested by this rule, there can be no conclusion other than that the cause properly rests in equity, where all the proceedings therein were had.

Gillett v. Treganza, 13 Wis. 472, 7 Mor. Min. Rep. 432; Lowber v. Connit, 36 Wis. 176; Topping v. Parish, 96 Wis. 378, 71 N. W. 367; North Side Loan & Bldg. Soc. v. Nakielski, 127 Wis. 539, 106 N. W. 1097.

Where a person contracted for the purchase of real estate and the title proved bad, and the vendor, without fraud, was incapable of making good. title, the vendee could only recover back what he had paid, with interest and costs, but nothing for the loss of his bargain.

Flureau v. Thornhill, 2 W. Bl. 1078, 96 Eng. Reprint, 635; Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453; Docter v. Hellberg, 65 Wis. 415, 27 N. W. 176; Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Darlington v. J. L. Gates Land Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447; Arentsen v. Moreland, 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99 N. W. 790, 2 Ann. Cas. 628; McLennan v. Church, 163 Wis. 411, 158 N. W. 73.

Jones, J., delivered the opinion of the court:

There are certain important facts in this case as to which there is no dispute. The defendants believed that they had the right to make the contract as the residuary legatees

under the will, and that they could convey good title. The facts that both lots had been included in the inventory of the deceased, and that for some years he had been paying the taxes on the lots, with such other facts as came to their knowledge, were circumstances well adapted to raise the belief that they were within their rights in making the contract.

When plaintiff brought the action. for specific performance, he knew that defendants could not give title to lot 8. In the prayer for relief in the complaint, plaintiff demanded. that a just deduction "from the purchase money of said two lots be made on account of defendants' failure of title and inability to convey to plaintiff said lot No. 8 and on account of interest on plaintiff's purchase money which has been idle, and on account of street improvement bonds and liens against said lot No. 9, and on account of damages sustained by plaintiff on account of defendants' failure, refusal, and inability to convey to him said lot No. 8, and upon payment by plaintiff of the residue of said purchase money, if any, that said defendants specifically perform said contract as to lot No. 9 by a conveyance of said lot to plaintiff, and that they furnish to plaintiff an abstract of title showing a marketable title in said defendants of said lot to be conveyed to plaintiff."

This plainly shows that the gist of the action was specific performance of the contract.

One of the court's findings was: "That the plaintiff declared upon the trial that he did not desire to rescind the contract but to have it enforced by a conveyance to him of said lot 9, he receiving such credit on the balance of the purchase prise as he might be lawfully entitled to by reason of the defendants' inability to convey to him lot 8."

It is true that plaintiff prayed for damages for the failure to perform the contract as to lot 8, and his counsel claim that for such nonperformance he is entitled as damages to the

difference in value of the lot on the date of the contract and the date when he tendered the balance of the purchase money. Whether plaintiff is entitled to such relief is the only issue in the case.

Vendor and purchaser

contract to sell knowledge of

real estate

Since defendants were unable to comply with a substantial part of the contract, plaintiff would have doubtless been entitled to a rescission if he had so elected, but he chose an entirely different and inconsistent remedy. It has been often decided by this court that, when a vendor makes a valid contract to sell land, he is bound to know whether he has title and is answerable in damages if he is unable to fulfil the contract. In such cases his liability does not necessarily depend on fraud or bad faith. See cases cited in Lee v. Bielefeld, 176 Wis. 225, 186 N. W. 587. It is also a familiar rule that, where there is an entire failure of title, this is not in all cases a complete de- fect of failure fense to the action

title.

Specific performance-ef

of title.

for specific performance, but the court may retain jurisdiction and give damages as compensation. Pom. Spec. Perf. of Contr. 2d ed. § 476.

Much greater difficulty arises in cases like the present where there. has been a failure of the title as to only a portion of the land conveyed, and where specific performance is sought. In an early case in this court it was held that, where a purchaser seeks specific performance of a contract, and the vendor has not the same interest in the land as that contracted for or there is a deficiency in quantity, the vendee may enforce a performance of the contract by compelling the vendor to give the best title he can and have a just amount abated from the purchase money for the deficiency of title or quantity or quality of the estate. Wright v. Young, 6 Wis. 127, 70 Am. Dec. 453. In another action for

tial failure of title upon conestate.

Damages-par

veyance of real

(176 Wis. 652, 187 N. W. 671.)

specific performance, where the property sold was represented to contain 49 acres, but in fact contained about 32 acres, the court followed the rule laid down in the foregoing case, and said: "Where the title fails to only a part of the land conveyed, the grantee may recover, in an action on the covenants of seizin and right to convey, or upon an agreement to convey, such fractional part of the whole consideration paid as the value at the time of the purchase of the piece to which the title fails bears to the whole purchase price, and interest thereon during the time he has been deprived of the use of such fractional part, but not exceeding six years." Docter v. Hellberg, 65 Wis. 415, 424, 27 N. W. 179; Messer v. Oestreich, 52 Wis. 696, 10 N. W. 6; Gates v. Parmly, 93 Wis. 294, 66 N. W. 253, 67 N. W. 739; Darlington v. J. L. Gates Land Co. 151 Wis. 461, 138 N. W. 72, 139 N. W. 447.

The cases we have cited are in line with a leading case decided in England in 1775, Flureau v. Thornhill, 2 W. Bl. 1078, 96 Eng. Reprint, 635, which has been much discussed by the courts and text-writers. Counsel for appellant do not contend that the rule adopted in that case and by this court should be changed, but that it should not be applied in the present case, because, it is ar

gued, defendants should have known the state of the title of the land they bargained to sell. This was equally true in the cases we have cited.

There are undoubtedly limitations upon the rule declared in the English case above cited and in the Wisconsin cases. For example, if the seller agrees to convey land he knows he does not own, or if, after making the contract, he sells to another, or otherwise disqualifies himself to make good his original agreement, he is liable to full compensatory damages, including those for the loss of the bargain. Arentsen v. Moreland, 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99 N. W. 790, 2 Ann. Cas. 628.

The trial court followed the rule which has long prevailed in this court, and we consider that the facts fully justified the conclusion reached. Judgment affirmed.

Crownhart, J., took no part.

NOTE.

The measure of damages recoverable by the vendee in an executory contract for the purchase of real property, where vendor is unable or refuses to convey, is the subject of the annotation following CRENSHAW V. WILLIAMS, post, 12.

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Damages, § 111 - vendee's loss of bargain— good faith of vendor. 1. A vendee of real estate is not entitled to damages for loss of his bargain upon inability of the vendor to make good title, where the vendor acted in good faith and was guilty of no positive or active fraud in the transaction.

[See annotation on this question beginning on page 12.]

Fraud, § 13 of vendor as to title.

2. Mere failure of a vendor of real estate to refer the vendee to his record muniments of title, or the judicial decisions bearing upon it, is not such fraud as to deprive him of the benefit

of the rule that damages for loss of bargain will not be awarded against a good-faith vendor who is unable to convey a good title.

[See 27 R. C. L. 634; 4 R. C. L. Supp. 1762; 5 R. C. L. Supp. 1480.]

APPEAL by plaintiff from a dismissal by the Circuit Court for Scott County of an action brought to recover damages for alleged breach of a contract for the sale of real estate. Affirmed.

N. W. 790, 2 Ann. Cas. 628; Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490; Hartzell v. Crumb, 90 Mo. 629, 3 S. W. 59.

The facts are stated in the opinion of the court. Messrs. Ford & Ford, for appellant: The title of the appellee is defective by reason of the fact that it may be defeated by his wife, upon her death, leaving other children. The possibility of issue is never considered extinguished.

Aulick v. Summers, 186 Ky. 810, 217 S. W. 1024; May v. Bank of Hardinsburg & T. Co. 150 Ky. 136, 48 L.R.A. (N.S.) 865, 150 S. W. 12; Rand v. Smith, 153 Ky. 516, 155 S. W. 1134; Bigley v. Watson, 98 Tenn. 353, 38 L.R.A. 679, 39 S. W. 525; Flora v. Anderson (C. C.) 67 Fed. 182.

Any general covenant to convey title, if not restricted or qualified in its terms by any other stipulation, implies that the covenantor can convey perfect legal title regularly derived from the commonwealth, and if he should be unable to convey such title his covenant will be broken.

Ethington v. Rigg, 173 Ky. 355, 191 S. W. 98; Bodley v. McChord, 4 J. J. Marsh. 475; Davis v. Dycus, 7 Bush, 4.

For breach of contract to convey good title to land, the measure of damages is the difference between the contract price and the fair and reasonable market value of the land on the day it was to have been conveyed under the contract, if the value is in excess of the contract price, and, if the value and the contract price are the same on that day, nominal damages only can be awarded.

Jenkins v. Hamilton, 153 Ky. 163, 154 S. W. 937; Grant v. McArthur, 153 Ky. 356, 155 S. W. 732; Whitworth v. Pool, 29 Ky. L. Rep. 1104, 96 S. W. 880; Clark v. Belt, 138 C. C. A. 1, 223 Fed. 573; Hopkins v. Lee, 6 Wheat. 109, 5 L. ed. 218; Harten v. Loffler, 212 U. S. 397, 53 L. ed. 568, 29 Sup. Ct. Rep. 351; 2 Sutherland, Damages, 3d ed. 579; Arentsen v. Moreland, 122 Wis. 167, 65 L.R.A. 973, 106 Am. St. Rep. 951, 99

Messrs. Bradley & Bradley, for appellee:

The vendee is not entitled to recover as damages the additional value which he alleges the farm had over the purchase price.

Cox v. Strode, 2 Bibb, 273, 5 Am. Dec. 603; Allen v. Anderson, 2 Bibb, 415; Rutledge v. Lawrence, 1 A. K. Marsh. 397; Grundy v. Edwards, 7 J. J. Marsh. 368, 23 Am. Dec. 409; Hunt v. Orwig, 17 B. Mon. 73, 66 Am. Dec. 144; Robertson v. Lemon, 2 Bush. 301; Wilson v. Hendrix, 13 Ky. L. Rep. 687; Sullivan v. Hill, 33 Ky. L. Rep. 962, 112 S. W. 564; Helton v. Asher, 135 Ky. 751, 123 S. W. 285; Moreland v. Henry, 156 Ky. 712, 161 S. W. 1105; Hunter v. Keightley, 184 Ky. 835, 213 S. W. 201; Hartsfield v. Wray, 181 Ky. 836, 205 S. W. 965; Stuart v. Pennis, 100 Va. 612, 42 S. E. 667; Gerbert v. Sons of Abraham, 59 N. J. L. 160, 69 L.R.A. 766, 59 Am. St. Rep. 578, 35 Atl. 1121; Lynch v. Wright (C. C.) 94 Fed. 703; Dumars v. Miller, 34 Pa. 319; Haney v. Hatfield, 241 Pa. 413, 88 Atl. 680; Gray v. Howell, 205 Pa. 211, 54 Atl. 774; Seymour v. Jaffe, 78 Wash. 1, 138 Pac. 276; Armstrong v. James, Tex. Civ. App. —, 220 S. W. 420.

Thomas, J., delivered the opinion of the court:

On January 19, 1920, appellee and defendant below, D. W. Williams, signed a contract, agreeing to convey to the appellant and plaintiff below J. W. Crenshaw, on March 1 thereafter, a tract of land in Scott county containing 398 acres, the consideration being $400 per acre, amounting in the aggregate to $159,

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