under, the latter was held entitled to recover as his damage the market value of the land at the time the deed ought to have been delivered according to the terms of the contract, less the amount unpaid upon the purchase price, and interest. It has been held that where the vendor has disabled himself from complying with an option to the vendee to purchase land, and the latter tenders performance of the terms of the option, the proper measure of damages is the value of the premises at the time conveyance was demanded, less the sum then due from the vendee under the option agreement. Brink v. Mitchell (1908) 135 Wis. 416, 116 N. W. 16. In Haralson v. McGavock (1882) 10 Lea (Tenn.) 719, where the vendor had sold real estate to another, after having received payment therefor by the conveyance to him of other property according to the terms of the contract, the measure of damage was held to be the value of the land at the time of the breach. The court said that where the value of the land at the time of the breach is uncertain, or has not been ascertained by some agreement, the reference is necessary to ascertain the same, but when the parties by their own contract fixed the value of the land which was to be conveyed, they fixed the measure of damages if the contract was broken. In Doriocourt v. Lacroix (1877) 29 La. Ann. 286, where the vendor of land by auction refused to perform, and sold the land shortly thereafter to another at an advanced price, the vendee was held entitled to recover this amount in an action for damages for breach of the contract. So, in Lyman v. Harvey (1919) 12 Del. Ch. 129, 108 Atl. 850, where the vendor, subsequently to the contract in question, entered into another executory contract for the sale of the land at a much higher price, and after his death, in an action against his personal representative, the vendee in the subsequent contract was decreed a specific performance, the vendee in the prior contract was held entitled to recover the difference between the amount he was to pay for the land and the amount that the subsequent vendee paid for it. In Zimmerman v. Miller (1919) 206 Mich. 599, 173 N. W. 364, where the vendor sold the property to another subsequently to the contract in suit, the measure of damages was held to be the difference between the contract price and the value of the property at the time of the breach, which was said to be at the time of this sale, and not the value of the property at the time of the litigation. In Spaulding v. Smith (1914) Tex. Civ. App. -, 169 S. W. 627, where the vendor resold to another, the proper measure of damage was held to be the difference between the contract price and the market value of the land. The court said: "The buyer is entitled to be compensated for the loss of his bargain, regardless of what he intended to do with the land. If it can be assumed that the purchaser under the resale contract would have complied with its terms, it can also be assumed that he would exact damages for a breach thereof by the other party, to the amount of the difference between the market value and the resale price." To the same effect is Bowen v. Speer (1914) Tex. Civ. App., 166 S. W. 1183. The rule was also applied in Eldridge v. Barreda (1921) — Tex. Civ. App. 233 S. W. 319, in favor of the grantee in a deed of conveyance, who had not recorded his deed, where the vendor subsequently sold the property to an innocent purchaser. Where a grantee of the vendor, with knowledge of the intervening right of the vendee in a contract for the purchase of the land, sold the land to a third person, the vendee may recover as damages an amount representing the difference between the reasonable value of the property at the time the defendant sold it, and the amount due and unpaid on the contract by the vendee. Davies v. Dayton (1921) 298 Ill. 201, 131 N. E. 578. An agreement by the vendee to sell the land to a third party at a profit above the contract price, but less than the legal measure of damage for the vendor's breach of the contract of sale, will not preclude him from recovering against the vendor the full measure of damage. Butler v. Milam (1921) 26 Ga. App. 126, 105 S. E. 628. In Merritt v. Adams County Land & Invest. Co. (1915) 29 N. D. 496, 151 N. W. 11, the measure of damage for a breach of contract to convey land, where the vendor was a corporation, and another and different agent from that representing the vendor in the transaction in question sold the land to a third person, was held to be the difference between the price agreed to be paid and the value of the real estate at the time of the breach, and the expenses incurred in examining the title, with interest thereon, together with the amount paid upon the purchase price, although it appeared that the vendee, being the plaintiff in the action, had purchased this land for the purpose of complying with a contract for the exchange of real estate made with a third person. It has, however, been held that the fact that the vendor disabled himself to convey by conveying to another may not necessarily show bad faith upon his part. Pabst Brewing Co. v. Nelson (1925) 108 Okla. 286, 236 Pac. 873. Upon this point the court said that the record disclosed that the defendant was attempting to be extremely fair. Both parties were quoted the same price, but the plaintiff was advised that his offer was subject to sale without notice, because the same price had been made to another. In Rineer v. Collins (1893) 156 Pa. 342, 27 Atl. 28, where a parol contract to convey land was breached by the vendor selling it to a third person, it was held that the vendee was not entitled to recover, as an element of damage, compensation for the loss of his bargain, based upon the difference between what he was to pay for the land and what the vendor subsequently sold it for. The court said that the damages for a breach of the contract to convey under a parol sale of real estate are not to be measured by the value of the land, but by the consideration paid, and compensation for improvements made in clearing, fencing, building, planting orchards, etc., in reliance on the contract, deducting therefrom a reasonable rental for the use of the premises. In Bartlett v. Smith (1906) 146 Mich. 188, 117 Am. St. Rep. 625, 109 N. W. 260, where the vendor resold the premises during the term of the contract, and while the vendee was in possession, and after he had made valuable improvements on the land in reliance on his contract, the vendee was held entitled to recover the payments made and the reasonable value of improvements, less the value of the use of the premises. He was not, however, allowed anything by way of loss of his bargain. In this case the vendee claimed a rescission of the contract and sued for the amount paid on the purchase price. No claim was made to recover for the difference between the contract price and the market value of the land. Where the vendee sues for damages for breach of the contract, thus electing not to seek to enforce its performance, he necessarily treats the contract as broken, and the measure of damages, in so far as affected by the motives and conduct of the vendor, is wholly determined by the vendor's motives and conduct prior to and at the time of the breach of the contract. In such a suit, the vendee cannot rely upon the conduct of the vendor after the breach of the contract, except as evidencing a lack of good faith in his conduct prior to or at the time of the breach. The vendee cannot hold on to the contract as binding upon and fixing the duty of the vendor after its breach, if, instead of seeking specific performance of it so as to rely upon the contract as still in force, he sues for damages for its breach. It follows that where the vendor acted in good faith, but was unable to convey by a good title at the time fixed for the ferformance of the contract, and the vendee thereupon elected to treat the contract as breached, the fact that the vendor subsequently sold the property does not establish bad faith. Davis v. Beury (1922) 134 Va. 322, 114 S. E. 773, 115 S. E. 527. i. Other reasons for nonperformance. Where the vendor by his own act, after the vendee has partly performed, In Mitchell v. Owen (1925) 159 Ga. 690, 127 S. E. 122, where the breach of the vendor's contract grew out of his mental incapacity to convey the land at the time fixed in the contract, but the vendee went into possession of the land and retained possession, cutting and removing therefrom valua- ble timber, the measure of the ven- dee's damage for the delay in tender- ing a conveyance was held to be the difference between the value of the land at the time when the deed was actually tendered, together with the value of the timber removed from the land by the vendee, and the value at In Phelan v. Tomlin (1910) 164 Ala. 383, 51 So. 382, where the measure of damage was assessed at the difference between the value of the property at the time of the execution of the con- tract and its value at the time of the breach, the vendor was prevented from performing by matters beyond his con- trol. Where there is a breach of contract for the conveyance of an equity in real estate with the result that the equity is lost, the measure of the vendee's damage is the value of his interest in the equity, less the amount which he was to pay under the contract of sale. (1889) 81 Cal. 214, 22 Pac. 546; Wil- Connecticut. Rabinovitz v. Mar- New York. Cockroft v. New York & H. R. Co. (1877) 69 N. Y. 201; Wet- more v. Bruce (1890) 118 N. Y. 319, 23 N. E. 303; Northridge v. Moore (1890) 118 N. Y. 419, 23 N. E. 570; Elterman v. Hyman (1908) 192 N. Y. 113, 127 Am. St. Rep. 862, 84 N. E. 937, 15 Ann. Cas. 819; Hochstein v. Vanderveer Crossing (1912) 150 App. Div. 118, 134 N. Y. Supp. 950; Uhl v. Loughran (1888) 14 N. Y. Civ. Proc. Rep. 344, 2 N. Y. Supp. 190; Hewison v. Hoffman (1889) 15 Daly, 176, 4 N. Y. Supp. 621; Porterfield v. Payne (1890) 57 Hun, 591, 32 N. Y. S. R. 1106, 11 N. Y. Supp. 31; Siebel v. Cohen (1887) 22 Jones & S. 436, 7 N. Y. S. R. 54; Elfenbein v. Von Hafen 1140; Empire Realty Corp. v. Sayre (1905) 107 App. Div. 415, 95 N. Y. Supp. 371; Rose v. Adler (1914) 147 N. Y. Supp. 307, affirmed in (1914) 165 App. Div. 921, 150 N. Y. Supp. 1110; Maupai v. Jackson (1910) 139 App. Div. 524, 124 N. Y. Supp. 220; Klimas v. Brumbach (1921) 116 Misc. 299, Virginia. Davis v. Beury (1922) In general, where the measure of recovery is limited to the amount paid on the purchase price, there can be included, in addition thereto, only expenses incurred in the attempt to carry out the contract, and which were caused or assumed by its obligations. Empire Realty Corp. v. Sayre (1905) 107 App. Div. 415, 95 N. Y. Supp. 371. In this regard, it has been pointed out that the vendee is not required to take anything less than a good marketable title, and the precautionary means of ascertaining about it, by examination, before parting with the purchase money and accepting conveyance, are properly made available by way of protection, and unless an understanding in some manner appears to the contrary, examination of the title by the vendor, and the reasonable expense of making it, may be regarded as in the contemplation of the parties, and treated as properly incidental to the contractual situation, and consequently the amount of such expense may, in the event of failure of the vendor to convey, be deemed special damages resulting from the breach, and are recoverable as such. North ridge v. Moore (1890) 118 N. Y. 419, 23 N. E. 570. And see to the same effect, Elterman v. Hyman (1908) 192 N. Y. 113, 127 Am. St. Rep. 862, 84 N. E. 937, 15 Ann. Cas. 819. A vendee who has employed a title company to search title is also entitled to employ an attorney to advise him in reference to title, and he is entitled to include both these items of expense in the computation of his damage. Maupai v. Jackson (1910) 139 App. Div. 524, 124 N. Y. Supp. 220. It is held in Jacobs v. Freyhan (1924) 156 La. 585, 100 So. 726, that where there was a defective title, the vendee, upon refusing to perform, was entitled to recover from the vendor 1 per cent of the purchase price as compensation to his attorney for examining the title. The amount to be recovered, in addition to the amount paid on the contract, also includes the amount paid for notarial fees stipulated for in the contract. Brewer v. New Orleans Land Co. (1923) 154 La. 446, 97 So. 605. In Dumars v. Miller (1859) 34 Pa. 319, where, before any part of the purchase price had been paid, the vendor discovered that he could not perform the contract, and so informed the vendee, the latter's damage was held to be limited to the amount he had paid in the preparation of a title deed. But it has been held that where the vendor is unable to make a good title, and the vendee thereupon seeks to recover the amount of deposit he has made on the purchase price, he is not entitled to have included the expenses incurred by him in investigating the title. Mangonaro v. Kare (1913) 84 N. J. L. 408, 87 Atl. 94. VIII. Interest as an element of damage. Where for the vendor's breach of his contract the vendee elects to recover the amount he has paid on the purchase price, he is entitled, also, to recover interest on the amount paid, subject to deductions for the rental value of the land for the time he occupied it. United Pratt v. Law (1815) 9 Cranch, 456, 3 L. ed. 791; Everett v. Mansfield (1906) 78 C. C. A. 188, 148 Fed. 374, 8 Ann. Cas. 956; McKay v. Carrington (1829) 1 MeLean, 50, Fed. Cas. No. 8,841. Alabama. 64 Ala. 193. States. Flinn v. Barber (1879) Georgia. Lightfoot v. Brower (1910) 133 Ga. 766, 66 S. E. 1094. Illinois. Bitzer v. Orban (1878) 88 Ill. 130; Howell v. Moores (1889) 127 Ill. 67, 19 N. E. 863. Indiana. Blackwell v. Justices of Lawrence County (1828) 2 Blackf. 143; Sheets v. Andrews (1829) 2 Blackf. 274; Adamson v. Rose (1868) 30 Ind. 380; Junk v. Barnard (1884) 99 Ind. 137. Pa Rep. 117; Sawyer v. Warner (1873) 36 Griffith v. Depew (1820) 3 A. K. Marsh. 177, 13 Am. Dec. 141; Need v. Kreigbaum (1831) 5 J. J. Marsh. 309; Triplett v. Gill (1832) 7 J. J. Marsh. 438; Herndon v. Venable (1838) 7 Dana, 371; Combs v. Tarlton (1834) 2 Dana, 464; Kay v. Curd (1845) 6 B. Mon. 100. Texas. Hall v. York (1859) 22 Tex. 642; Neill v. Watson (1873) 39 Tex. 375; Clifton v. Charles (1909) 53 Tex. Civ. App. 448, 116 S. W. 120; Vaughn v. Farmers & M. Nat. Bank (1910) 59 Tex. Civ. App. 380, 126 S. W. 690; Rascoe v. Myre (1918) Tex. Civ. App. 202 S. W. 780. Vermont. Bedell v. Tracy (1892) 65 Vt. 494, 26 Atl. 1031. Virginia. 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; Schaefer v. E. F. Gregory Co. (1920) 112 Wash. 408, 192 Pac. 968; Crawford v. Smith (1923) 127 Wash. 77, 219 Pac. 855. In Neill v. Watson (1873) 39 Tex. 375, interest is computed upon the payments made upon the purchase price by the vendee from the time of the making of each payment. So, in Harris County Invest. Co. v. Davis (1921) Tex. Civ. App. —, 230 S. W. 761, it is held that where the vendor breached its contract to convey certain land to the vendee, upon payment by the latter of the purchase price, the vendor was liable for the money paid with legal interest thereon from the date of the payment of the money. Likewise, where the vendor, after having received the purchase money, refused to carry out the contract, the vendee was held entitled to recover interest on the purchase price from the date of the payment, and not from the date on which he was entitled to a deed. Lewis v. Williams (1906) 41 Tex. Civ. App. 464, 91 S. W. 247. And in Kiger v. McCarthy Co. (1909) 10 Cal. App. 308, 101 Pac. 928, where a judgment was given for the difference between the price of the land and its value at the time of the breach, interest was allowed on the payments made. So, it is held in Rascoe v. Myre (1918) Tex. Civ. App. —, 202 S. W. 780, where the vendee sues to rescind an executory contract for the purchase of land, and to recover the amount paid upon the purchase price, he is entitled to interest upon the amount thus paid from the time of payment. In Smoot v. Smoot (1883) 12 Lea (Tenn.) 274, where performance of a parol contract for the purchase of real estate, after the vendee had entered into possession, was defeated by the lunacy of the vendor, it was held that |