201 F. 785 | 6th Cir. | 1913
This case arises out of a written contract entered into between the appellant, Edward R. Freeman, a citizen of Tennessee (hereinafter called the plaintiff), and the appellees, John A. Geary and others, citizens of Kentucky (hereinafter called
The defendants were to deliver to the plaintiff a complete map of the lands, giving metes and bounds, and also a complete abstract of title, showing a perfect title in the defendants, and no adverse possession. The plaintiff was to have a reasonable time after the receipt of the map and abstract of title, etc., to investigate the title and to close the transaction, by the defendants executing to plaintiff, or such other grantee as he might name, a general warranty deed, conveying a perfect title to the land, on the compliance by the plaintiff with the terms of payment provided for in the contract. The defendants failed to execute the warranty deed within reasonable time, and the plaintiff-filed the petition in this case, wherein are alleged the execution of the contract, and the breach thereof by the defendants, in that they failed and refused to convey or attempt to convey the lands to the plaintiff, for the reason, as is charged, that the defendants—
“have not the fee-simple or any title, or the possession of any material portion of the 8,500 acres, or more, which they undertook to convey to him in tracts A and B, and they have not the fee-simple title to, or the possession of, any but a very small portion of the 11,500 acres which they undertook to convey to him in tract C, and he says that what little land the defendants have in tracts A, B, and O is so cut up into small parcels and so surrounded by other- lands, owned and in the adverse possession of other parties, that the same is wholly worthless for any purpose.”
It is alleged that the measure of damages is the difference between the value of the land at the date when defendants refused or failed to convey and the price to be paid for it, which difference is alleged to be $3.50 per acre, and, further, that after making the contract the plaintiff, in his efforts to obtain the land from the defendants, and while he was looking to them to do and perform their contract as respects the land, was necessarily compelled to expend in such efforts the sum of $2,000, all of which was lost to the plaintiff. Wherefore suit .was brought for $74,375, that being the amount of the difference between the value of the minimum number of acres to have been conveyed and the contract price, and, in addition, for $2,000 as expenses, totaling the sum of $76,375.
The defendants seasonably entered a motion to strike out that portion of the petition wherein it is sought to recover $2,000 for' expenses alleged to have been incurred by the plaintiff, and also filed a general demurrer, upon the ground that the petition “failed to state facts sufficiently to constitute a cause of action against them or either of them.” The court below sustained both the motion to strike out and the demurrer, with leave to the plaintiff to amend his petition.
We shall not consider the action of the court in sustaining the motion to strike out, but treat the general demurrer as going to the entire petition. The four errors assigned may be treated under one general head, to wit: That the court, erred in deciding that the petition did not state facts sufficient to constitute a cause of action against the defendants, or any of them, and in rendering judgment against the plaintiff.
There is no allegation of fraud or bad faith on the part of the defendants, but the allegation, in substance, is that the vendors did not convey because, at the date of their contract, they had title only to a very small part of the land which they contracted to sell.
“Where there has been no fraud in the transactions, and none is alleged In this ease, both parties are equally innocent; and as the purchaser is contending de lucro captando, and the seller de damno evitando, to compel the latter to respond to the former for the rise of value would be directly contrary to the maxim of moral equity which prohibits one man being enriched to the prejudice of another.”
“It lias been settled by a current of decisions in tills court (that where one contracts to convey land, and is, without fraud, unable to make a title, the measure of damages to which the vendee is entitled is the. value of the land at the time of the sale, to be ascertained by the consideration fixed, or other evidence. Where the inability of the vendor has been produced by fraud on his part, a different rule has prevailed; but a failure to] convey has never been adjudged to be evidence of a fraudulent inability, and we think ought not to be so adjudged. For an inability to convey may, and frequently does, happen without fraud, and fraud is odious in law, and ought never to be presumed.”
To the same effect; Allen v. Anderson, 2 Bibb (Ky.) 415; Davis v. Lewis, 4 Bibb (Ky.) 456; Goff v. Hawks, 5 J. J. Marsh. (Ky.) 341; Young’s Ex’rs v. Singleton, 6 J. J. Marsh. (Ky.) 316, 320; Grundy v. Edwards, 7 J. J. Marsh. (Ky.) 368; McMillan v. Ritchie, 3 T. B. Mon. (Ky.) 348, 16 Am. Dec. 107; Combs v. Tarlton’s Adm’rs, 2 Dana (Ky.) 465, 468.
It is-insisted that this line of decisions has been recently overruled by the Kentucky Court of Appeals in Whitworth v. Pool, 96 S. W. 880. This case does not appear in the published volumes of the opinions of the Kentucky Court of Appeals. Indeed, at the hearing, it was agreed that it was by that court marked “not for publication.” In this circumstance, conceding for the moment that the court in that case went as far as is insisted by appellant’s counsel, we should
But the case of Whitworth v. Pool is, we think, clearly distinguishable from the instant case. There the land in question was owned by R. J. Whitworth and his wife, Mary Whitworth, each owning an undivided one-half interest, and they arbitrarily (and so, necessarily, in bad faith) refused to convey it. In the instant case, the defendants did not own the land, and it was for that reason, as is alleged in the petition, they did not convey it. We see no inconsistency in the holdings in Whitworth v. Pool with the former holdings by the Court of Appeals of Kentucky.
Harten v. Loffler, 212 U. S. 397, 29 Sup. Ct. 351, 53 L. Ed. 568, is not applicable under the averments of this declaration and the Kentucky rule as settled by the decisions of that state. Moreover, the measure of damages, as settled in the state of Kentucky, in cases of the character here considered, is sustained by many English authorities, beginning with Flureau v. Thornhill, Blackstone’s Reports, vol. 2, and also by courts of the several states, as well as text-writers. Bitner v. Brough, 11 Pa. (1 Jones) 127, 139; Dumars v. Miller, 34 Pa. (10 Casey) 319; Gerbert v. Trustees, 59 N. J. Law, 160, 35 Atl. 1121, 69 L. R. A. 764, 59 Am. St. Rep. 578; Hammond v. Hannin, 21 Mich. 374, 4 Am. Rep. 490 (Judge Cooley); Kent’s Commentaries, vol. 4, 479; Field’s Law of Damages, § 481.
The further question of the plaintiff’s right to recover expenses which it is alleged he was necessarily compelled to incur in his efforts to have said land conveyed to him remains to be considered. The contract provides that the defendants were to furnish the plaintiff with maps and abstracts of title, etc., and that he should have a reasonable time after their receipt to investigate the title to the land, and close the transaction. ■ ' .
The expense the plaintiff incurred is not.itemized, nor does he state what he did to incur any expense, further than to say that' it was incurred in his efforts to have the land conveyed to him. In the absence of a specific allegation, it is difficult to determine from the contract just what expense he could have properly incurred, for which the defendants would be liable, until after they 'had furnished to him the maps and abstracts of title, which was not done. It would seem that any expense incurred by him prior to that time was unauthorized and voluntary, and that for such expense defendants would not be liable.
Without pursuing the subject further, we are satisfied with the action of the court below in sustaining the demurrer and dismissing the petition, and it is accordingly affirmed, with costs;