90 Mo. 629 | Mo. | 1886
Plaintiffs, who are partners under the name of Hartzell & Brother, brought this suit to recover damages for a breach of the following contract:
“Received of Hartzell & Brother one hundred dollars as earnest money on purchase of 722 acres, leaving a balance of fourteen hundred dollars (describing land), in Bollinger county, Missouri, the last described 165 acres to be Q. C. deed, balance warranty, from the owner, D. S. Crumb, and his wife.
“O. P. Hedges & Company, Agents.
“Bloomfield, Mo., August 20, 1881.”
Hedges & Company were real estate agents at St. Louis, and had Crumb’s land for sale' as his agents. Hartzell, Hedges and Crumb met at Bloomfield, and the above contract was then made on the day of its date. It was signed by Hedges in the presence of and at the request of Crumb. Hartzell then paid the one hundred dollars, fifty of which Crumb retained, and the balance was handed to Hedges to procure abstracts and forward them to Hartzell in Indiana, and, if satisfactory, Hartzell was to send the balance of the punchase money to St. Louis. Crumb forwarded deeds to a bank at St. Louis on the twenty-second of the same month to remain, there for ten days. The first abstract was not such as Hedges and Crumb saw fit to submit to Hartzell, and others were procured. This caused considerable delay. In the meantime the bank returned the deeds to Crumb. Hartzell received the abstract about the first of October,. 1881, and at once remitted the balance of the purchase' money to a bank in St. Louis. Crumb, on receiving notice of this, wrote Hedges a letter in which he enclosed
In Kirkpatrick v. Downing, 58 Mo. 32, the vendor gave the vendee a title bond for the conveyance of the land upon the payment of the purchase money. A part of the money had been paid when the wife of the vendor, without authority, surrendered the bond, and the vendor sold the land to another person, thereby putting it out of his power to make a' deed to his first vendee. In a suit on the bond, brought by the vendee, the trial court gave, as the measure of damages, the amount of the purchase money paid, and refused to instruct on the basis of the difference between the purchase price and the value of the land at the time of the breach, it having been shown that the land had greatly decreased in value at that date. Wagner, J., speaking for the court, refers to the conflict in the authorities, and proceeds to a review of them to determine which line would most likely promote the ends of justice. It is held that the
The court then quoted approvingly from Hopkins v. Lee, 6 Wheat. 109, where it is ruled that it makes no difference in principle whether the contract be for real or personal property. “ In both cases the vendee is entitled to have the thing agreed for at the contract price, and to sell it himself at its increased value. If it be withheld, the owner ought to make good to him the difference.”
The rule which allows damages in these cases the same as in sales of personal property has been followed in a number of the states. The decisions to that effect are collected in the notes to 1 Sedgwick on Measure of Damages [7 Ed.] page 429. The author of the notes says: “We believe the rule to be the correct one on principle.” The rule that excludes the distinction between contracts made for the sale of real estate and personal property, and also excludes, as a consequence, any consideration of the question of good or bad faith, seems to meet with the approval of some of the modern text writers. Field on Dam., secs. 504, 506 ; or, as stated
It is to be remembered that in this country, especially in the western states, lands are quite as much the subject of trade as personal property. Titles for the most part are not complicated. Statute law has reduced conveyances to a great degree of simplicity. There is ■no good reason why one who undertakes to sell real property by a specified form of deed should not abide the terms of his contract. He can readily contract against any unexpected, real or supposed defect in the title. So long as the vendee is willing to accept the •deed bargained for, the vendor ought not to be relieved from paying an adequate compensation for breach of the contract. The supposed or real defect in the title, and the question of good faith, or want of good faith, should not be considered. Adequate compensation requires that the vendee should be put in the same position, as near as can be done by the award of damages, that he would have been in, if the contract had been executed as agreed. Where the purchase money has not been paid, the measure of damages is the difference between the ■contract price and the value of the property at the date of the breach. In this case the damages will also include the advance payment; we, therefore, adhere to what was said in Kirkpatrick v. Downing, supra.
c< The jury are instructed that in this case, unless' they believe from the evidence that Crumb gave plaintiffs, or their agents, direct and positive notice that he would not carry into effect the contract to convey the lands to Hartzell & Brother, made at Bloomfield August 20, 1881, then the breach, if any, occurred when the defendant, Crumb, put it out of his power to comply with his contract by conveyingit to Brown on the fourth of April, 1882.”
There is no evidence that notice of the termination of the contract in writing was given by defendant. Under these instructions, the jury could not have found the date of the breach to have been earlier than the fourth of April, 1882. Now there is evidence tending to show that in October, 1881, the defendant refused to do more than make a quit-claim deed, and that plaintiffs then refused to accept such a deed, and all this was known to both parties. Indeed, the plaintiffs seem to have acted upon this understanding, for they withdrew their deposit in January, 1882. The time consumed in furnishing abstracts to the plaintiffs could not operate against them. When they received the abstracts and forwarded the money, which they did in due time, and ■Crumb had notice thereof and refused to make a warranty deed, and communicated that fact by himself, or ■agents, to the plaintiffs, then there was a breach of the contract, full and complete. The plaintiffs could have sued for damages at once. No further or additional notice was required. It should be left to the jury to determine when the breach occurred, by stating hypothetically what facts would constitute a breach. Of course if there was no breach prior to the deed to Brown, then that date may be taken as the date of the breach.
It results from what has been said, that the judgment must be reversed and the cause remanded, for the period at which the value of the land is to be estimated is material and important in this case, and upon that question the jury was misdirected.
Judgment reversed and cause remanded.