| Mont. | Aug 15, 1869
The complaint in this cause presents the following facts as constituting plaintiffs’ cause of action :
Appellants made an agreement with respondent on the 5th day of April, 1869, for the purchase of a certain lot,
In accordance with that agreement appellants paid respondent $1,000, and executed and delivered to J. H. Shober to be held as an escrow two promissory notes secured by a mortgage upon the premises for the sum of $6,500. Respondent made and executed a deed to said premises to appellants and delivered the same to the said Shober to be held as in escrow. The whole agreement was to be consummated on the 3d day of May, 1869. At that time appellants were to pay respondent $5,500 in addition to the $1,000 already paid. The deed was to be delivered to them, the mortgage and notes to be delivered to respondent. If the appellants failed to comply with their portion of the agreement they were to forfeit to respondent the $1,000 already paid, as liquidated damages. That appellants were to hold possession of the premises from the said 5th day of April until the said 3d day of May. Appellants were on the said 3d day of May willing and ready to pay the respondent the sum of $5,500, and in all respects to comply with the terms of their agreement. The buildings on said premises were worth the sum of $6,500. Respondent was unable to comply with his portion of the agreement, for the reason that on the 28th day of April these buildings were destroyed by fire, and respondent was unable to deliver the premises as they were on the day of agreement. Appellants claim judgment *for the $1,000 paid respondent.’-'
The respondent filed a general demurrer to the complaint, setting forth that it did not state facts sufficient to constitute a cause of action. The court sustained the demurrer. The appellants appeal to this court, assigning as error this ruling of the court below.
The question presented in this case is, could the appellants, when it became impossible for the respondent, without any fault of his, to deliver the premises with all the buddings thereon, as they were at the time of the agreement to them on the 5th day of May, rescind the agreement %
There is no allegation that the respondent could not con
If the buildings had been damaged without the fault of respondent, to the extent of $5, so that he could not have delivered the premises to appellants in the same condition they were at the date of the agreement, in principle the same reasons would exist for rescinding the agreement as exists in this case. If any other rule prevailed, the right to rescind an agreement would depend upon the amount of damages done the premises bargained for, and it would devolve upon the court to decide when a sufficient amount of damages had been done, premises bargained for, to warrant a contracting party to rescind the agreement. We have been unable to find any authority, and do not believe that any exists, to the effect that where au appurtenance to real estate, which was not the chief inducement to the purchase of the same, has been damaged, or even destroyed, without any fault of the vendor, so that he could not deliver the premises on the day they were, to be delivered to the vendee in the same condition they were on the day the agreement was made, the vendee would have the right to rescind the agreement altogether.
Believing that such is not the law, we find no error in the ruling of the court below.
It is true, if the premises were respondent’s at the time of the fire, the loss of the buildings would be his, and the appellants might have their value deducted from the amount they were to pay him for the premises; or, if the buildings were the chief inducement for the purchase of the premises, perhaps a court of equity would, for this reason, order the agreement rescinded and canceled. But» to allow a vendee to rescind an agreement for the purchase j of real estate, for a damage to an appurtenance thereto, J without any fault of the vendor, which could be compen- j
These being the views of the court in this case, the judgment of the court below is affirmed.
Exceptions overruled.