| Ill. | Jan 15, 1861
Here two separate tracts of land, one of eighty acres and the other of two hundred acres, were sold for a gross sum and conveyed by one deed with a covenant of warranty. The title to the eighty acre tract failed, and this action was brought to recover damages for a breach of the covenant of warranty. There is no question, had the title to the whole failed, that the measure of damages would have been the consideration paid and interest. The law is also well settled that where the title fails to a part of the land sold for a gross sum, with a warranty, the measure of damages for a breach of the covenant is the relative value of the land to which the title has failed, as compared with that to which the title is good, in proportion to the price paid for the whole. Assuming that the proof shows that the two hundred acres were worth five thousand dollars, and the eighty acres were worth one hundred dollars, and the price paid for the whole was six thousand dollars, then there was the sum of nine hundred dollars paid for the whole purchase more than it was worth, and this loss must be apportioned to the two tracts according to their actual values respectively. Thus dividing the nine hundred dollars into fifty-one parts, the tract worth five thousand dollars would bear fifty parts of it, and the tract worth one hundred dollars one part, and by this amount would the actual value of the eighty acre tract be increased for the purpose of ascertaining how much was paid in the purchase for this tract, and by adding to this sum the interest upon it, the amount of the damages for the breach of the covenant would be ascertained. The proof satisfactorily shows that the real value of the eighty acre tract was one hundred dollars, and the defendant in error insists that there is no proof of the actual value of the two hundred acre tract, and that hence the court was to assume that each tract was of equal value per acre. If in fact there was no proof that the two hundred acre tract was worth more than one dollar and twenty-five cents per acre, perhaps the legal presumption would be as stated. While no proof was directly given as to the value of the larger tract, the record does clearly show that it was worth more per acre than the smaller tract, and satisfies us that the cause should be remanded that full proof may be adduced on this point, the importance of which does not seem to have been appreciated on the trial below. The evidence is uncontradicted that during the negotiation for the purchase, the plaintiff below offered five thousand dollars for the larger tract, from which we may reasonably conclude that it was his judgment that the land was worth that sum, and it will hardly do for him now to say that this opinion of his does not tend to show that the land was worth more than one dollar and a quarter per acre.
The court below, in determining the amount of the damages, seems to have estimated the amount of the purchase money for this eighty acre lot at twelve dollars and fifty cents per acre. But to support this there was no sufficient proof. The witness Sublett, who finally made the purchase, as the agent of the plaintiff below, swears, that both tracts were purchased together for one price, and that no separate price for each lot was agreed upon or talked about. That he offeréd six thousand dollars as a gross sum for the whole, which offer was accepted by the defendant below. After the bargain was thus struck, the defendant, looking up as if talking to himself remarked “that will be putting the eighty acres at twelve and one-half dollars per acre.” There can be no pretense for saying that this remark constituted any part of the negotiation or bargain, and if it was designed that the witness should hear it, it was not made to him, and could have had no influence in the bargain, for that was struck before the remark was made. Even if this remark could afford any evidence that in the opinion of the defendant the land was worth that sum, the evidence is abundant to show that it was not in fact worth more than one dollar and a quarter per acre.
We are satisfied that this cause should be again tried, with a more correct appreciation of the important questions of fact to be elucidated, in order to properly apply the correct principles of law to the rights of the parties.
The judgment is reversed, and the cause remanded.
Judgment reversed.