Lumpkin, Justice.
The motion for a new trial contains numerous grounds, but the questions upon which the case really turns are succinctly stated in the head-notes.
1. There can be no doubt that Kay was a general agent of the Brunswick Company, and, as such, had a right to make sales of its lots, though not invested with authority to make and execute deeds or other conveyances. It is also true beyond question that he did sell a lot to Dart without any condition or restriction whatever as to its use; that possession of the lot was delivered to the purchaser, the price paid in full, and that the purchaser made valuable improvements upon the lot. Afterwards, the company tendered him a deed containing numerous restrictions and limitations, which Dart declined to accept, but, on the contrary, filed an equitable petition praying for a specific performance of the contract as made. It seems that the company so far recognized the validity of the sale made by Kay as to accept the purchase money, and permit Dart to remain in possession and improve the property, but it desired to incorporate in its deed of conveyance terms entirely unknown to the transaction between its agent and Dart. It had no right to do this, but was bound to convey in accordance with the terms of the sale as made; and therefore, under the evidence, the verdict and decree for a specific performance in Dart’s favor were right.
*7492. The evidence to sustain the finding of the jury that the Brunswick Company acted in bad faith was not very strong, and it is at best doubtful whether Hart really had a right to damages on this ground. But be this as it may, he did not bring his action for damages for a breach of the contract. He had a right to do this, or to proceed for a specific performance. Having elected this latter remedy, he waived his right to collect attorney’s fees as damages for bad faith in breaking the contract, the performance of which was decreed in his favor. Section 2942 of the code, which allows in specified cases expenses of litigation as a part of the damages, is applicable to actions for damages sustained in the breach of a contract, but is not applicable where the party stands upon the contract, seeks to have the same enforced specifically, and succeeds in so doing. Consequently, in affirming the judgment, we have ordered the recovery of,$50.00 for counsel fees to be written off by the plaintiff below. Judgment affirmed, with direction.