In July, 1905, the parties hereto entered into a written contract wherein the defendant agreed to convey to plaintiff 80 acres of land in Saunders county on the 1st day of March, 1906. Plaintiff paid $100 in cash and agreed to assume $2,000 of an incumbrance and to pay a remainder of $2,460 upon maturity of the contract. When the contract was made, defendant owned but an undivided one-half interest in the land in controversy. He and one Harmon owned in equal shares this land and 80 acres adjoining it. In February, 1906, defendant sold and conveyed all of his interest in the land to Harmon. This action was brought to recover damages for the loss of plaintiff’s bargain. She obtained judgment in the court below for $1,105.90, and defendant appeals.
Defendant contends that before the contract was executed he had his co-owner’s verbal promise to convey his interest to defendant; that the contract was made upon the condition that Harmon would convey, but thereafter he re
Defendant relies upon Flureau v. Thornhill, 2 Wm. Bl. (Eng.) *1078, and the decisions of the American courts in accord therewith. It was there held that, on a contract for the purchase of real estate, if the title proves bad, and the vendor is without fraud unable to make a good one, the purchaser is not entitled to damages for the loss of his bargain. Eelative to the contract, Blackstone, J., ' said: “These contracts are merely upon condition, frequently expressed, but always implied, that the vendor1 has a good title.” In Hopkins v. Grazebrook, 6 B. & C. (Eng.) *31, the vendor, at the time he contracted to sell, had substantially no estate, and the conditions of sale provided for a good title. It was held that the vendee could recover for the loss of his bargain. Such recovery Avas alloAved also in Robinson v. Harman, 1 Exch. (Eng.) *850, Arherein it appears that the defendant had agreed
Where it is possible, and the wronged party demands
The contract provided for the conveyance of the land with all the improvements placed thereon prior to the making of a certain lease. Plaintiff's evidence of value was given with reference to the land as it stood at the maturity of the contract. Defendant assigns error in the admission of this evidence, because it failed to exclude the improvements made by the tenant. The contract failed to specify the improvements not conveyed. By his answer, defendant alleged that there were certain improvements made by the tenant, who was authorized to remove the same. The evidence discloses that this tenant had re
Defendant requested tbe court to order the jury to view tbe premises. This tbe court refused to do, for reasons expressed in bis own words as follows: “Tbe court doubts somewhat tbe matter of sending the jury out of tbe county and judicial district. For this reason, it being a discretionary matter with the court, the request will be refused.” Section 284 of tbe code provides for a view by tbe jury of property which is tbe subject of litigation, or of the place in which any material fact occurred, whenever in tbe opinion of tbe court it is proper. There is a conflict of authorities upon this question. Some courts bold that a jury may not be sent beyond tbe territorial jurisdiction of the court, unless expressly authorized by statute. Rockford, R. I. & St. L. R. Co. v. Coppinger, 66 Ill. 510. But a fair interpretation of our statute convinces us that a different rule should obtain here, and that a trial court in its discretion may sénd tbe jury to view any property within tbe state. Section 1119 of tbe California penal code authorizes the superior court, in the exercise of a sound discretion, to cause a view to be taken by tbe jury of tbe place where tbe offense was charged to have been committed, or in which any other material fact occurred. This was held, in People v. Busle, 71 Cal. 602, to authorize a view in any county in tbe state. Section 7283 of the Ohio Rev. St. has provisions identical with our own, and it was held in Jones v. State, 51 Ohio St. 331, that a jury may be sent to any place where a material fact occurred, if within the jurisdiction of tbe state. We are of tbe opinion that the court bad the power to send the jury to view tbe premises in controversy, but it does not
For the reasons given above, we recommend that Reed v. Beardsley, 6 Neb. 493, so far as it relates to the measure of damages, and those cases following the same rule, be overruled, and that the judgment of the district court be affirmed.
By the Court: for the reasons stated in the foregoing-opinion, the judgment of the district court is
Affirmed.