76 Md. 281 | Md. | 1892
delivered the opinion of the Court.
The declaration in this case alleges, in substance, that by a written contract under seal, entered into between the appellant and the appellee, the former agreed to sell to the latter a farm for a stipulated sum of money, and to execute a conveyance therefor and to deliver possession thereof, on April the first, 1890; and that the appellee on his part undertook and promised to pay part of the purchase money on the execution of' the contract, another part on the first of April, 1890, and on the same day to execute to the vendor a mortgage upon the land
During the progress of the trial six exceptions were reserved; five of these being" to rulings of the Court on the admissibility of evidence, and one to the granting of the appellee’s first and second instructions and to the rejection of the appellant’s twenty-three pi’ayers. After verdict, a motion in arrest of judgment was filed, hut this was overruled, and judgment against the appellant was thereupon entered, and this appeal was then taken by him.
The first exception was taken to the admission in evidence of the contract alleged to he the one sued on; and the second to the admissibility of the mortgage executed by the appellee and tendered by him to the appellant. Both the contract and the mortgage were objected to on the ground of variance, and substantially the same question is involved in each of these two exceptions. A consideration of one will therefore dispose also of the other.
The declaration does not set out the agreement in its precise words, but purports to give only its legal effect.
The third, fourth and fifth exceptions were taken to the refusal by the Court to allow the appellant to offer in evidence certain declarations made by the appellee on the last, day of March, 1890, to the effect that he would not take the farm according to the written contract. This proffered testimony was properly excluded. It proved no issue in the case. It was not admissible, as tending, to show that the appellee had himself committed a breach of the contract. The question was, did the appellee comply with the covenants on his part, and not, did he intend not to comply with them ? If he did in fact comply, his antecedent declarations, not acted on, that he would not comply, . were wholly immaterial. They were not even admissible as reflecting on the question of damages. In an action for a breach of covenant to convey land, the measure of damages is well defined. In Hammond vs. Hannin. 21 Mich., 374, Judge Cooley collected and reviewed numerous cases, and stated as a result the following conclusions: “If the vendor acts in bad faith, — as, if having title he refuses to convey, or disables himself from conveying, — the proper measure of damages is the value of the land at the time of the breach; the rule, in such case, being the same in relation to real as to personal property. But, on the other hand,
The sixth exception involves the prayers. Special exceptions were filed by the appellant to the granting of the appellee’s prayers, but those exceptions, whilst set forth in the record, are not incorporated in the bill of exceptions. Unless included in the formal bill of exceptions and certified by the seal of the trial Judge to have been passed upon by him, they are not before us for consideration. Albert vs. State, use of Ryan, 66 Md., 325.
The first instruction granted at the instance of the appellee told the jury, in effect, that if they found the execution of the contract sued on, then the true interpretation thereof was that the appellant was required by its terms to deliver to the appellee on April the first, 1890, possession of the farm described, if the appellee complied with his covenants; and that if they should find that the appellee tendered on April the first, 1890, the sum of $1,400, as testified to, and also at the same time, offered to deliver to the appellant the mortgage and mortgage note adduced in evidence, and that the appellant refused to deliver possession of said farm and refused to deliver a deed therefor, then the appelleewas entitled to recover. The first, second, third, third and a half, fourth, fifth, sixth, seventh, eleventh, twelfth,, thirteenth and fourteenth prayers submitted by the appellant present some opposite propositions, and raise-the following questions: Whether the facts in evidence showed a tender of the $1,400, and whether the mortgage-executed by the appellee was, by reason of the omission of certain covenants with respect to the annual payment of interest on the mortgage debt, the payment of taxes, and the insurance of the improvements on the farm, a sufficient compliance on the part of the appellee with his agreement. A consideration of the first instruction will consequently dispose of the above enumerated prayers of the appellant.
The record shows that on April the 1st, 1890, the appellant and the appellee met to complete the performance of the contract. There was considerable discussion over various subjects, and finally the appellee placed upon a table in the room where both he and the appellant, as well as several other persons, then were, a package of bank notes and a few dollars in coin, and said to the appellant, or his attorney, who was present, “there are $1,400 ; count it, if you please.” The appellant did not count it, nor did his counsel, but refused to accept it, not because it did not contain the correct amount, and not because of the kind of money, but solely because the appellee refused to execute the mortgage which the appellant demanded, containing the covenants which the appellee objected to. The money was placed upon the table for the appellant. The amount payable that day under the contract was there, and it was brought there and thus offered to the appellant under and in accordance with the agreement. If he did not take it, or make any objection to receiving it, other than that the mortgage was not satisfactory to him, he cannot complain that there was no sufficient tender. 2 Green. Ev., sec. 603.o It follows from this that there was no error in rejecting those of the prayers of the appellant which related to the subject of tender. The remaining prayers of the appellant relate to subjects fully covered by the granted instructions, and need not, therefore, be .considered further than to say that the fifteenth, which relates to the measure of damages, was erroneous because, while conceding the right of the plaintiff to recover the amount which the farm enhanced in value between the date of the contract and the day of the breach, it excluded the right to recovery back the money actually paid.
The second instruction granted at the instance of the appellee correctly stated the measure of damages. There
As we have found no error in the rulings excepted to, the judgment appealed from will be affirmed, with costs.
Judgment affirmed, with costs.