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the vendee for improvements made by him upon the land of which he was in possession under an oral contract for purchase was based upon the value added to the land by the permanent improvements made by him thereon.

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It is held in Bender v. Bender (1860) 37 Pa. 419, that while an oral contract for the sale of land is not enforceable, yet damages for its breach may be recovered, consisting of compensation for all the vendee did, relying on the contract, and for permanent improvements made with knowledge of the vendor, and of which he got the benefit by taking back the land, deducting the value of the rents and profits during the vendee's occupancy. In Harris v. Harris (1871) 70 Pa. 170, where the vendee in an oral contract for the purchase of real estate entered into possession thereof and retained possession for upwards of twenty years, during which time he made valuable improvements upon the land with the knowledge, consent, and approval of the vendor, it was held that the vendee was entitled to an accounting for such improvements in connection with a deduction of a reasonable rental for the use of the premises. In Holthouse v. Rynd (1893) 155 Pa. 43, 25 Atl. 760, where an executory contract for the sale of real estate, although in writing, was insufficient under the Statute of Frauds, and the court refused specifically to enforce it, it was held that the vendee might recover for improvements made upon the premises, including a house erected thereon, where such improvements were made with the knowledge and consent of the vendor, and he had led the vendee to believe that he did not intend to rely upon the invalidity of the contract.

But it has been held that even though improvements were made by the vendee in reliance upon the expectation of receiving a good title, founded upon the vendor's agreement to convey it, he is not entitled to recover the amount paid by him in making improvements, where the vendor was not guilty of fraud or bad faith. Walton v. Meeks (1890) 120 N. Y. 79, 23 N. E. 1115. The court said that it is

the settled doctrine in this state that, without the aid of fraud or bad faith, nothing can be recovered for improvements made, or for the increased value of the premises produced by them. So, it is held in Peters v. McKeon (1847) 4 Denio (N. Y.) 546, that the vendee is not entitled to recover compensation for the expenses which he may have incurred in moving to the land, or in making improvements upon it, whether of a permanent or temporary nature. An expenditure by the vendee for improvements while he is uncertain about the title is not generally recoverable as a part of the damage, where the vendee finally refuses the title because of a defect therein. Prentice v. Townsend (1911) 143 App. Div. 151, 127 N. Y. Supp. 1006. But in Gibert v. Peteler (1868) 38 N. Y. 165, 97 Am. Dec. 785, where the contract imposed upon the vendee, as a condition of being entitled to a deed, the duty of making upon the land certain improvements of a substantial character, he was held entitled to the amount he had expended in making these improvements, the vendor's title being defective. And in Conners v. Winans (1924) 122 Misc. 824, 204 N. Y. Supp. 142, it is recognized that under certain conditions the vendee may recover for improvements which he may have made upon the property, relying upon the performance by the vendor of his contract.

In Wilhelm v. Fimple (1870) 31 Iowa, 131, 7 Am. Rep. 117, where the vendee rescinded the contract because of the inability of the vendor to perform, and brought an action to recover the amount paid on the purchase price, the court pointed out: "The action is not brought upon the contract for damages, but is based upon a rescission of the contract, and is instituted to recover the advancements made thereon. Counsel have referred us to no precedents which, under the circumstances, justify a recovery for improvements. It would seem to be a hardship to require defendant to pay for improvements which, perhaps, he did not desire, and which may not, for his uses, have enhanced the value of the property. We are of opinion that

the rule of damages which maintains an action upon a breach of covenant of warranty, which, in the absence of fraud, limits the recovery to consideration money and interest, is applicable to this case."

In Cartin v. Hammond (1890) 10 Mont. 1, 24 Pac. 627, where a contract for the sale of land contained no provision authorizing the vendee to enter into possession, but he nevertheless did enter into possession and made improvements upon the land, it was held that he was not entitled to have the value of such improvements considered in assessing his damage for the vendor's breach of his contract to convey.

In Cloud v. Whitlow (1851) 6 La. Ann. 743, where the contract was for the sale of land belonging to the government, which was subsequently entered by a third person, it was held that, while the vendor was liable for the amount paid by the vendee, he was not liable for improvements made by the latter, it appearing that the vendor acted in good faith, and that the vendee might have entered the land himself.

It is held in Haddock v. Taylor (1889) 74 Tex. 216, 11 S. W. 1093, that where the vendor was guilty of fraud in misrepresenting the title to land, but it did not appear that the parties at the time of the contract contemplated that the vendee would make improvements upon the land, he was not entitled to recover for such improvements, in addition to recovering the amount he had paid on the purchase price, with interest.

In Worthington V. Warrington (1849) 8 C. B. 134, 137 Eng. Reprint, 459, the rule is stated that if a purchaser thinks proper to enter into possession and incur expenses and alterations before the title is ascertained, he dces so at his own risk.

It is held in Gerbert v. Sons of Abraham (1896) 59 N. J. L. 160, 69 L.R.A. 764, 59 Am. St. Rep. 578, 35 Atl. 1121, that where the vendor breaches the contract to convey unimproved land, and the vendee, before the conveyance was to have been made and before the breach, erected buildings

upon the land without the request of the vendor, he could not recover the value of the improvements he thus made, where the breach was due to the vendor having a defective title. The court said that it must be held that the lessee made the improvements at his own risk, and not under an assurance that the title would be given including such improvements, inasmuch as they were made long before the lessee announced his election to purchase. The rights of the parties must be adjudged according to status at the time the improvements were made, and that was the relation of landlord and tenant.

So, it has been held that the vendee is not entitled to recover at law for the cost or value of improvements which he has made under an invalid contract, but that his remedy is in equity, where he is entitled to relief to the extent of the permanent enhancement of the value of the land by reason of the improvements. Mathews v. Davis (1845) 6 Humph. (Tenn.) 324. The court said: "When a contract for land is entered into, the parties know it will not be binding unless it is made in writing. Each party is equally culpable for failing to make the contract in such a manner as that it will be obligatory. If the party agreeing to purchase perform labor and make improvements which will benefit the owner of the land, we have said he has equitable right to compensation. But if his work and labor and materials are of a character that will not benefit the owner of the estate, upon what principle of equity can it be assumed that it ought to be paid?" And see Peyton v. Butler (1816) 3 Hayw. (Tenn.) 141, where the vendee's claim for expenses incurred in erecting improvements was disallowed on the ground that they were no part of the contract, and were made by him of his own choice.

X. Miscellaneous.

Where, as part of the purchase price, the vendee turned over to the vendor certain personal property at an agreed price, and upon the latter's breach of his contract to convey

sought a judgment for the amount paid, the vendee was held entitled to recover an amount representing the agreed value of the property, and not its market or intrinsic value, where the property itself was not in a condition to be returned. McDonald v. Whaley (1918) Tex. Civ. App. 207 S. W. 609. See also same case, subsequent appeal, in (1921) - Tex. Civ. App., 228 S. W. 313, which was modified and affirmed in (1922) Tex., 244 S. W. 596.

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It is held in Chartier v. Marshall (1876) 56 N. H. 478, that where the vendor had no title to the premises he had contracted to sell, and the vendee, after learning this fact, purchased the premises of the real owner, he was entitled to recover from the vendor such a sum as would place him in the same position that he would have been in, had the original vendor performed his contract. So, in Hird v. Esquimalt & N. R. Co. (1909) 14 B. C. 382, the measure of recovery of the vendee, where the vendor's breach was due to a shortage in the quantity of land conveyed, owing to the fact that the vendor had mistakenly conveyed the land to another, was limited to the contract price of the shortage, there being no evidence as to the actual value of the property.

Where title fails to only a portion of the land covered by the contract, the vendee is entitled to recover such fractional part of the whole consideration paid as the value, at the time of the purchase of the piece the title to which failed, bears to the whole purchase price, and interest during the time he has been deprived of the use of such fractional part. MCFARLANE v. DIXON (reported herewith) ante,

1.

So, where payment is made by the transfer of specific articles at an agreed price, this price is prima facie the amount the vendee is entitled to recover on breach by the vendor of the agreement to convey. Bennett v. Phelps (1867) 12 Minn. 326, Gil. 216; Blahnik v. Small Farms Improv. Co. 181 Cal. 379, 184 Pac. 661. In Blemaster v. Rockey (1916) 200 Ill. App. 320, where plaintiff conveyed property

to defendant under an oral agreement to convey the property, subject to mortgages thereon, and to pay a certain sum of money equivalent to notes held by the defendant, but which had been transferred to another person, in consideration of the cancelation of the notes and the conveyance of other property, it was held proper, where the defendant refused to perform the contract, to assess the plaintiff's damage at a sum representing the fair market value of the plaintiff's interest in the property conveyed. In Stewart v. Noble (1847) 1 G. Greene (Iowa) 26, where the consideration for a bond to execute a deed of certain property was the conveyance of other real estate, which was actually conveyed, it was held that the court properly instructed the jury that the value of the land described in the covenant was to be ascertained by the consideration money, and interest thereon, and this amount was the measure of the vendee's damage.

In Spruill v. Davenport (1844) 27 N. C. (5 Ired. L.) 145, the agreement breached by the vendor was to devise a certain tract of land to the vendee in fee, for the carrying out of which he executed a bond. In these circumstances the court said that the measure of damage was the difference between the value of an estate in fee simple and a defeasible estate such as the vendor actually devised, not exceeding the penalty of the bond.

Where the contract fixes the measure of recovery for failure of the vendor to perform an executory contract for the sale of real estate, of course, that controls. It has been held that, in an action by the vendee to recover the amount stipulated, the action is neither for rescission nor for money had and received, but is for the recovery of money due under an express contract. Vorwerk v. Nolte (1890) 3 Cal. Unrep. 285, 24 Pac. 840. The case is reversed in (1890) 87 Cal: 236, 25 Pac. 412, on the ground that there had been a sufficient performance on the part of the vendor.

In Johnson v. Arcadia Orchard Co. (1916) 91 Wash. 289, 157 Pac. 685, where a contract for the sale of a cer

tain number of acres of land provided that the vendee should be entitled to such proportionate part of the land as the amount he paid should bear to the purchase price and accrued interest, except that no fractional part of an acre should be deeded, and he failed to make payments after paying one fourth of the amount of the purchase price, and the interest, and a small amount in addition, upon the breach by the vendor to convey such proportionate part of the land, the vendee was held entitled to recover only the value of the proportionate part of the land he had paid for, not including the excess amount that he had paid, which was insufficient to pay for 1 acre.

In Ross v. Saylor (1909) 39 Mont. 559, 104 Pac. 864, where the vendor contracted to sell land which he had already sold, and the vendee went to considerable expense in making preparations for taking possession of the land before he ascertained the vendor's lack of title, and he had paid for the land by conveyance of other property, the measure of damage was held to be the value of the property conveyed, together with the expenses properly incurred in preparing to enter upon the land.

Where the contract expressly obligates the vendee to pay taxes and assessments against the property and keep the same insured, he is entitled to recover the sums thus paid, as well as the purchase price paid by him, where he rescinds the contract on a proper ground. Empey v. Northwestern & P. Hypotheekbank (1924) 129 Wash. 392, 225 Pac. 226. In Hudson v. Tilly (1923) 154 La. 839, 98 So. 265, in addition to recovering the amount paid on the purchase price, where the vendor refused to carry out the contract, the vendee was also held entitled to a refund of money paid for taxes, but was not entitled to recover the amount paid for insurance premiums, where it did not appear that he was compelled to insure, or that he insured at the vendor's request. So, in Anderson v. Ohnoutka (1909) 84 Neb. 517, 121 N. W. 577, the vendee was held not entitled to recover for

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chaser of land under a bond for title, or a contract guaranteeing him a good title, may recover or set off in an action for the purchase price amounts which he has paid to remove an encumbrance, or otherwise perfect his title, including interest and necessary expenses, where the outstanding claims actually paid by the purchaser are superior to the vendor's title, and of which the purchaser was ignorant at the time of his purchase. The same principle would apply to the recovery of money so paid after the purchase price has been paid." Hammond v. Oregon & C. R. Co. (1926) 117 Or. 244, 243 Pac. 767.

The vendee cannot have included as the measure of his damage for breach of the contract by the vendor, money he paid for commissions incurred, not in performing the contract, but in procuring it. Empire Realty Corp. v. Sayre (1905) 107 App. Div. 415, 95 N. Y. Supp. 371. It has been held that in an action of covenant by the vendee, in an executory contract for the sale of land, where the breach is due to the inability of the vendor to perform because of defect in his title, the vendee is not entitled to recover the expense of taking possession of the land, or of commencing the cultivation thereof. Peters v. McKeon (1847) 4 Denio (N. Y.) 546. Nor is he entitled to recover for the value of time occupied by him in advertising and developing the property for resale. Davis v. Beury (1922) 134 Va. 322, 114 S. E. 773, 115 S. E. 527. Or to recover, in addition to the amount he has paid on the purchase price, the amount he has expended in the cost of shrubbery planted beyond the plain boundary of the lot, or for the expense of having a survey made of the property. Henderson v. Miller (1922) 119 Wash. 362, 205 Pac. 1.

XI. Determination of value.

a. In general.

Questions in relation to evidence to

prove value are beyond the scope of the annotation.

The market value on the day of the breach, and not its prior or subsequent value, is the value to be taken into consideration in assessing the damage. Dady v. Condit (1904) 209 Ill. 488, 70 N. E. 1088. The market value is the highest price obtainable in the open market for cash. Ibid. In Engell v. Fitch (1869) L. R. 4 Q. B. (Eng.) 659 - Exch. Ch., where the measure of damage was held to be the difference between the contract price and the value of the land at the time of the breach of the contract, this value was fixed at the amount for which it appeared the vendee could have made a resale of the land, had the vendor performed. But the actual value of the land is not to be limited to the price it would bring at forced sale at auction under the hammer. Abrams v. Sinn (1922) 193 Iowa, 528, 187 N. W. 491. Nor is the market value to be determined by the peak of a temporary boom price. Ibid. Considering the extent to which boom prices of land are to govern in determining the actual value thereof, in fixing the vendee's damage, it is pointed out in Abrams v. Sinn (Iowa) supra: "While the worth or value of property is, in one sense of the word, what price it will command on the market, it is a reasonable and equitable proposition that, where damages are sought to be recovered for failure to convey land, its value is not conclusively established by reference to the peak prices or bottom prices of an abnormal, feverish, and fluctuating speculative market, but is rather the fair value of the property as between one who wants to purchase and the one who wants to sell it-not what it could be obtained for in peculiar circumstances, when greater than its fair price could be obtained; 'not its speculative value; not the value obtained through the necessities of another; nor, on the other hand, is it to be limited to that price which property would bring when forced off at auction under the hammer."" But in Dady Condit V. (1904) 209 Ill. 488, 70 N. E. 1088, it was held that the

damages should be assessed at the difference between the contract price and the market value of the land, although the market value has been greatly increased between the date of the contract and the time of the breach, by reason of the reasonable possibility of the tract being included within the limits of a city, this fact being the reason for the vendor's refusal to perform.

The market value is the price that would in all probability result from fair negotiation, where the seller is willing to sell and the buyer desires to buy. Maxon v. Gates (1908) 136 Wis. 270, 116 N. W. 758. Where the contract relates to a large body of land, its market value is not to be determined by what it would sell for in small parcels, but it is the market value of the land in its entirety at the time of the breach, less the contract price. Ibid. In this case the contract breached was for the sale of a large acreage of land held under tax titles, and the court ascertained the value of the land at the time of the breach of the contract by taking into consideration the value of different tracts in small acreage. In holding this was error it is pointed out: "The plaintiff here, therefore, is entitled to recover, as compensation for the defendant's refusal to convey, the difference between the price agreed to be paid and the actual value of the lands on March 1, 1900, if sold in a body, subject to outstanding encumbrances, to one ready and willing to buy; such damages to be ascertained with reasonable certainty as the natural result of the breach, and as within the probable contemplation of the parties at the time the contract was entered into. In the application of the law to the evidence in this case, the court erred in adopting as a basis for compensation the value of the lands in small parcels, and in giving too great weight to the proof of sales made a year or more subsequent to the breach, and after there had been a decided advance in values."

b. Absence of evidence of value; burden. The burden is upon the vendee to

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