6 Barb. 646 | N.Y. Sup. Ct. | 1849
The principal question presented for our decision upon the appeal in this cause, and upon which the other questions made upon the trial in some measure depend, is as to the proper rule of damages in an action brought by the vendee of real estate against his vendor, for a breach of his covenant to convey the premises, the purchase money having been fully paid before or at the time of the execution of the covenant. The counsel for the appellant insists 1. That no action can be maintained, for the reason' that the plaintiff was at the commencement of the action in possession of the premises, and had not put the defendant in the same situation in which he was before the contract; and has cited in support of his position various authorities. But the decisions to which we are referred, are cases in which the plaintiffs have sought to rescind the contract on account of the default of the vendor, and have brought actions for the purchase money as for money paid upon a consideration which has failed. And the courts have held in that class of cases that the Contract could not be rescinded at the option of one party, so as to enable him to maintain an action for money paid, when the other party could not be placed in his former position, which could not be done when the vendee had had the possession of the premises, but that the remedy of the
The present action, however, is not brought to recover back the purchase money, in disaffirmance of the contract, but is in affirmance of and directly upon the contract, for the recovery of damages for a breach of it. And whether the plaintiff has been in the occupation of the premises at all, or whether he was in possession up to the time of the trial, is immaterial, as it can not affect the right of the plaintiff to sustain the action. A breach of the contract alone entitles a party to an action, and there was such breach when the defendant, upon request, refused to convey the premises. (Delavergne v. Norris, 7 John. 358. Prescott v. Truman, 4 Mass. Rep. 627.)
It is insisted, secondly, that the plaintiff, being in possession of the premises up to the time of the commencement of the action, he can recover but nominal damages; that actual eviction was necessary to entitle him to recover the entire purchase money by way of damages for the non-convqyance. I am unable to discover upon what principle the possession of the premises by the plaintiff can affect his remedy in this action. The contract, for the non-performance of which this action is brought, was for the title to, and not the possession of, the premises. • The possession of the premises could not have been in part performance of such contract; and although it may have been beneficial to the plaintiff it did not at all mitigate the damages sustained by him by the inability or unwillingness of the defendant to convey the premises. Again; if the defendant had title to the premises, and a right to convey them, and has wilfully refused to perform his contract, he has done so in his own wrong, and has voluntarily placed himself in a position in which he may lose the use of the premises for the time during which the plaintiff has occupied them ; but tie can not be permitted,
In Calkins v. Harris, (9 John. 324,) the plaintiff in an action for a breach of the covenant of seisin in a deed of conveyance, was held entitled to recover the consideration money and interest for six years, notwithstanding the plaintiff had remained in possession of the premises granted, up to the time of the trial. And Sutherland, J. in Baldwin v. Munn, (2 Wend. R. 399,) says that in an action of covenant for not conveying, the rule of damages upon an eviction of real estate should control, by the force of analogy. The rule of damages is the same in an action for a breach of the covenant of seisin as in an action for breach of a covenant for quiet enjoyment after eviction. (Pitcher v. Livingston, 4 John. 1. Bennett v. Jenkins, 13 Id. 50. Staats v. Ten Eyck, 3 Caines, 111. House v. House, 10 Paige, 158.)
In Gillett v. Maynard, (5 John. 85,) the plaintiff was allowed to recover the money paid by him upon a contract for the purchase of real estate, with interest, notwithstanding he had been in the occupation of the premises; the defendant having volun
The measure of damages adopted by the judge at the trial was as favorable to the defendant as he could ask ; and it may be doubted whether a- more stringent rule might not have been adopted, and the plaintiff have been allowed to recover the value of the land at the time of the refusal to convey, with interest from that time.
In Hopkins v. Grazebrook, (6 B. & C. 31,) a person who had contracted for the purchase of an estate, but had not obtained a conveyance, put up the estate for sale in lots by auction, and engaged to make a good title by a certain day, which he was unable to do, as his vendor never made a conveyance to him. And it was held that a purchaser of certain lots at the auction might, in an action for not making a good title, recover not only the expenses which he had incurred, but also damages for the loss which he sustained by not having the contract carried into effect. The defendant brought into court the deposit made by the plaintiff on the purchase, and his expenses, and a small sum for nominal damages. The judge, on the trial, told the jury they were not bound to confine their verdict to nominal damages, and a verdict was rendered for the plaintiff for £70 damages, which the court of king’s bench refused to disturb. Abbott, C. J. says, “ Upon the present occasion I will only say that if it is advanced as a general proposition that when a vendor can not make a good title the purchaser shall recover nothing more than nominal damages, I am by no means prepared to assent to it.” And he distinguishes the case from Flureau v. Thornhill, (2 W. Bl. 1078,) in which the vendor, the defendant, was the owner of the estate, but the title was objectionable, and he had offered the plaintiff his election either to take the title with all its faults, or to receive back his deposit with interest and costs, and in that case, under the circumstances, the court held that the plaintiff was only entitled to his money with interest and costs. In Hopkins v. Lee, (6 Wheat. Rep. 109,) the supreme court of the United States decided that in an action of this kind the proper measure of damages was not the
It is however insisted that interest should not have been allowed, for the reason that the plaintiff had been in possession and received the mesne profits, which should be a compensation for the interest of the purchase money. The judge, upon the trial applied to this case the rule of damages, in this respect, which has been settled as applicable to actions upon covenants for quiet enjoyment or of seisin, after eviction. The defendant is not entitled to any more liberal rule. In actions for eviction a party has been allowed only to recover interest to the extent of his liability for mesne profits; and as that is limited to the last six years, the recovery of interest for a period anterior to that time has not been allowed. (Calkins v. Harris, 9 John. 325. Pitcher v. Livingston, 4 Id. 1. Bennett v. Jenkins, 13 Id. 50. Bickford v. Paige, 2 Mass. Rep. 455. Kelly v. Dutch Church of Schenectady, 2 Hill, 105.) Even if it is true that the plaintiff in a case like the present should not receive interest when he would not be liable for mesne profits, for the reason that he had occupied by the assent of the defendant, who was the owner of the premises and might have made a title thereto, and would not, which I do not think entirely clear, still there is nothing in the evidence given, or in that offered to be given by the defendant, which should entitle the defendant to be relieved from the payment of interest in this case. The defendant admitted that he could not make a title to the premises, for the reason that he had no title himself; and there was no evidence that the defendant had a title, or the right to the possession to the premises, so that he could protect the plaintiff from an action for the mesne profits, at the suit of the rightful owner. The evidence offered did not tend to establish the fact that the plaintiff was not liable to any person other than the defendant, for mesne profits; or that the defendant had the right to the possession of the premises; or that the plaintiff was not a trespasser. 1. The. defendant did not propose or offer to show in whom the title to the premises was, or that Roberts had any authority either from the true owner, or any other per
The views advanced, if correct, dispose of all the questions made upon the trial and presented by the record, and the judgment must be affirmed.
Judgment affirmed.