Nebraska.-Carver v. Taylor (1892) 35 Neb. 429, 53 N. W. 386.

New York.-Farley v. Secor (1915) 167 App. Div. 80, 152 N. Y. Supp. 787; Schwimmer v. Roth (1920) 111 Misc. 654, 182 N. Y. Supp. 12; Grosso v. Sporer (1924) 123 Misc. 796, 206 N. Y. Supp. 227. Ohio. Dustin (1837) 8 Ohio, 50. Oregon. Neppach v. Oregon & C. R. Co. (1905) 46 Or. 374, 80 Pac. 482, 7 Ann. Cas. 1035.

V.

Newcomer

Pennsylvania. McDowell v. Oyer (1853) 21 Pa. 426.

In Martin v. Wright (1857) 21 Ga. 504, the court said that the rule of damages in actions on deeds or warranties of title is different from that where the action is on a bond for title; that a party cannot covenant to make a deed, and then refuse to convey, and take advantage, for his own benefit, of the increase in the value of the land.

The rule is stated in Francis V. Brown (Wyo.) supra, that, where damages are sought for the refusal or failure to sell land, pursuant to the terms of a contract, for a stipulated price, the measure of damages, in the absence of an agreement to the contrary, is the difference between the contract price and the value of the land at the time appointed for the completion of the sale.

In Morgan v. Stearns (1871) 40 Cal. 434, where a judgment for substantial damages for breach by the vendor of his contract to convey real estate was sustained, the court said that where the vendor wilfully refuses to comply with the terms of the agreement, merely because the land has in the meantime considerably appreciated in value, mere nominal damages are not to be considered.

When the contract for the purchase of a right of way for a railroad has been fully performed upon the part of the vendee, the measure of damage recoverable for breach of the contract by the vendor refusing to convey, is the value, at the date of the completed performance by the vendee, of the lands and other rights described in the contract. Cape Girardeau & C. R. Co. v. Wingerter (1907) 124 Mo. App. 426, 101 S. W. 1113.

In Legrotta v. Pittsburgh Plate Glass Co. (1920) Mo. App. —, 220 S. W. 705, where the measure of damage was held to be the difference between the purchase price and the reasonable market value of the premises, the vendor unlawfully undertook to rescind the contract.

Where damages are given in lieu of specific performance on account of the wilful refusal of the vendor to convey, the measure of damage is the difference in value between the stipulated purchase price and the value of the land. Farley v. Secor (1915) 167 App. Div. 80, 152 N. Y. Supp. 787. And it is said in Schwimmer v. Roth (1920) 111 Misc. 654, 182 N. Y. Supp. 12, that if the vendor arbitrarily refused to perform a contract to convey, or knowingly contracted beyond his power, or had been guilty of fraud or bad faith, the vendee might recover damages in addition to the amount he has paid on the purchase price.

In Kean v. Landrum (1905) 72 S. C. 556, 52 S. E. 421, where the action was to recover the money paid on the contract which the vendor refused to carry out, the court said: "The money paid under a contract is sometimes the true measure of damages for its breach, but it is not necessarily so. To illustrate: if one buys land at the in

stance and request and for the benefit of another, taking the title to himself merely because he advanced the purchase money, and the land is subsequently greatly enhanced in value, and then, after repayment of the purchase money to him, the holder of the legal title undertakes to benefit himself by retaining the land, it is evident he should pay as damages, not the amount of the purchase money repaid to him, but the value of the land. On the other hand, if, after such a purchase, the land should decrease in value, and the person advancing the money and taking title should refuse to convey on repayment of the purchase money, on account of some other claim set up in good faith by him, which turned out not to be well founded, it is equally evident it would be unjust to fix as damages the purchase money refunded to him, because to do so would be requiring him to be responsible for the bad bargain of the person for whom the purchase was made."

It has been held that where the vendors could not fulfil the agreement without executing a deed with covenants to indemnify the vendee in case of failure of title, the measure of damages for their refusal to execute such a deed is the difference in value of the land at the time the vendee became entitled to the deed by the tender of the purchase money and the sum agreed to be paid for the land, if the value of the land at the time of the tender was greater than the price fixed in the contract, together with the payments made by the vendee, with interest from the time of payment. Hall v. Delaplaine (1856) 5 Wis. 206, 68 Am.

Dec. 57.

It is not necessary, in order to establish the bad faith of the vendor, that he should have refused to go on with the transaction because of some gain which would accrue to him. It is sufficient if he refuses to convey because, through his own negligence, he has put it out of his power to fulfil the obligations of his contract. Shaw v. Union Escrow & Realty Co. (1921) 53 Cal. App. 66, 200 Pac. 25.

But in Stuart v. Pennis (1902) 100

Va. 612, 42 S. E. 667, treating the sale of standing timber as a sale of real estate, it is held that a breach of a contract for such sale entitles the vendee to recover as damages the purchase money actually paid, and interest thereon. In this case the breach relied upon was the refusal of the vendor to permit the vendee to inspect and mark the timber covered by the contract. Such interference with the contract was apparently regarded by the court as not bringing the case within the rule allowing the vendee to recover as damages compensation for loss of profits where the vendor wilfully refuses to perform for the purpose of procuring a more advantageous bargain.

And see Ronaldson & P. Co. v. Bynum (1908) 122 La. 687, 48 So. 152, where the vendor refused to convey and it was held that, in assessing the damage, the value of the property at the date that the option incorporated in the lease was accepted, and not at the date of the offer to sell, was to be ascertained. The damages were not assessed, since it was held that the value was not proved with sufficient certainty.

In Welch v. Hover-Schiffner Co. (1913) 75 Wash. 130, 134 Pac. 526, where the damages of the vendee were limited to the amount paid on the purchase price, the vendor unlawfully and forcibly re-entered and took possession of the premises, on the untenable ground that the vendee had forfeited his rights therein.

In Wilson v. White (1911) 161 Cal. 453, 119 Pac. 895, where it was held that the vendee was not entitled to recover compensation for loss of his bargain, specific performance was denied on the ground of the inadequacy of the consideration, and the vendor, after having refused to perform the contract, entered into a contract for the sale of the property to another at a higher price.

Where the vendor refuses to perform an executory contract for the sale of real estate, which, because it is oral and invalid under the Statute of Frauds, or because for other reasons, such as its indefiniteness, it can

Massachusetts. Kidder v. Hunt (1823) 1 Pick. 328, 11 Am. Dec. 183; Thompson v. Gould (1838) 20 Pick. 134; Williams v. Bemis (1871) 108 Mass. 91, 11 Am. Rep. 318; White v. Wieland (1872) 109 Mass. 291; Dix v. Marcy (1875) 116 Mass. 416; Parker v. Tainter (1877) 123 Mass. 185.

Michigan. Davis v. Strobridge (1880) 44 Mich. 157, 6 N. W. 205.

Minnesota.-Wyvell v. Jones (1887) 37 Minn. 68, 33 N. W. 43; Larson v. O'Hara (1906) 98 Minn. 71, 116 Am. St. Rep. 342, 107 N. W. 821, 8 Ann. Cas. 849.

Co. v. Guthrie (1895) 116 N. C. 381, 21 S. E. 952.

Ohio. Buck v. Waddle (1824) 1 Ohio, 357.

Tennessee.-Rhea v. Allison (1859) 3 Head, 176; Masson v. Swan (1871) 6 Heisk. 450; Herring v. Pollard (1843) 4 Humph. 362, 40 Am. Dec. 653; Mathews v. Davis (1845) 6 Humph. 327; Humphreys v. Holtsinger (1855) 3 Sneed, 229; Rainer v. Huddleston (1871) 4 Heisk. 226. Texas. Burleson v. Tinnin (1907) Tex. Civ. App. 100 S. W. 350; Nellius v. Thompson Bros. Lumber Co. (1913) Tex. Civ. App. 156 S. W. 259; Whaley v. McDonald (1917) Tex. Civ. App., 194 S. W. 409. Utah.

-

Duncan v. Gibson (1898)

17 Utah, 209, 53 Pac. 1044. Vermont.

Bedell v. Tracy (1892) 65 Vt. 494, 26 Atl. 1031; Welch v. Darling (1886) 59 Vt. 136, 7 Atl. 547.

Washington. - Davis v. Lee (1909) 52 Wash. 330, 132 Am. St. Rep. 973, 100 Pac. 752; Adams v. Dose (1915) 87 Wash. 575, 152 Pac. 9. Wisconsin. Brandeis v. Neustadtl (1860) 13 Wis. 142; Schneider v. Reed (1904) 123 Wis. 488, 101 N. W. 682.

The rule was applied in Glasse v. Stewart (1907) 32 Pa. Super. Ct. 385, to a contract in writing which the vendor refused to perform on the ground of mistake in regard to the property included therein. The court said: "The rule is well established that, if the vendor make default without fraud, the vendee is only entitled to recover the price paid, together with the expenses incurred on the faith of the contract. . . This rule applies to written and parol contracts.

The application of the rule to the two classes of contracts rests upon different principles, but with equal conclusiveness. Where a plaintiff seeks to recover a larger measure of damages, it is necessary that he make it appear from the evidence that the defendant practised fraud, artifice, or collusion. And this must have inhered in the original agreement. Fraud is not presumed. It must be established by sufficient evidence. The burden of proof is, therefore, on the plaintiff, to show the fraudulent con

Canada. Bennett v. Stodgell (1916) 36 Ont. L. Rep. 45, 28 D. L. R. 639; Horsnail v. Shute (1921) 30 B. C. 189, 62 D. L. R. 199.

The fact that the vendee subsequently contracted to sell the land at a much higher figure does not affect the rule of damages, which is still the difference between the contract price and the fair market value. The amount to be received under the subsequent contract, however, may be considered in arriving at the market value. McMillen v. Betz (1922) 224 Ill. App. 117.

It is said in Roberts v. McFadden (Tex.) supra, that if a person contracts to convey a piece of land on a certain day for a certain price, and between the date of the contract and the day of performance he sells to another, thus putting it out of his power to convey, he is liable to the vendee for the loss of his bargain; whereas, if he has simply been mistaken in his ability to make title, the measure of damage would be the amount paid upon the purchase price.

In Horsnail v. Shute (B. C.) supra, where the vendor sold the land to a third person, thereby precluding the vendee from obtaining relief by way of specific performance, the latter was held entitled to recover the difference between the contract price and the value of the land at the time when the resale was made, and also compensation for the vendee's loss of profits due to being deprived of the use of the land, being the net profits actually

realized from a fruit crop raised thereon.

In Shaw v. Union Escrow & Realty Co. (1921) 53 Cal. App. 66, 200 Pac. 25, the vendor was held liable in damages for the difference between the value of the property at the time of the breach, and the contract price, where the property had largely increased in value during this time, and the vendor sought to avoid carrying out the contract by claiming that it was a corporation and had given one agent exclusive authority to sell this property within a certain length of time, and that another of its agents, without knowledge of this fact, had actually contracted to sell it to the plaintiff, and that subsequently the other agent had also sold it to a third person, acting under the authority mentioned.

In Lawrence v. Chase (1866) 54 Me. 196, where the vendee was held entitled to recover the value of the land less the contract price, there was an agreement by the vendor to obtain title to the land and then execute a written contract with the vendee to convey same to him within a certain time, upon certain conditions, but the vendor, after acquiring the land, sold it to another.

In Vallentyne v. Immigration Land Co. (1905) 95 Minn. 195, 103 N. W. 1028, 5 Ann. Cas. 212, where the measure of damage was held to include compensation for loss of profits, it appeared that prior to the execution of the contract in question the vendor had sold standing timber upon the land to another, who subsequently removed it, and this was relied upon as constituting a breach of the contract.

In McLennan v. Church (Wis.) supra, where the measure of vendee's damage was held to be compensation for the loss of his bargain, the contract was breached by the collusion of the vendor and a subsequent purchaser of the land, both of whom were made parties defendant to the action by the vendee.

In Johnson v. McMullin (Wyo.) supra, where the vendor rescinded a contract on the untenable ground that the vendee had forfeited his rights there