67 Pa. 126 | Pa. | 1871
The opinion of the court was delivered,
Eli Cope, Daniel Kaine and Alfred E. Meason met at Mr. Cope’s house on an evening in December 1864, and agreed together verbally to buy a farm owned by James Shoaf. Their mutual agreement was that the purchase should be made in the names of Cope and Kaine, in order that Meason might appear to act as their agent, and make a better sale of the land, ibut (to use Kaine’s words) that the farm should be bought for ithem all, each an equal owner, each to pay one-third, and each.to
These authorities establish another point, that in the absence of fraud, nothing can be recovered for the loss of a parol bargain, but compensation only for the actual loss sustained, such as the payment of money and expenditures and expenses incurred on the faith of the bargain. The principle, however, is derived from the case of a vendor who sells in good faith and is unable to make a good title. In all such cases the vendee is not permitted to recover for the loss of a good bargain, but is confined to his actual loss in money, labor or service performed on the faith of the contract. But there is another class of cases where the vendor has not acted in good faith, or has been guilty of deception, where the vendee’ is permitted to recover also for the loss of his bargain: King v. Pyle, 8 S. & R. 166; Good v. Good, 9 Watts’ 567; Lee v. Dean, 3 Wharton 330; Bitner v. Brough, 1 Jones 139. Rogers, J., said in the last ease: “ But the rule holds good when the vendor acts with good faith; where he is guilty of collusion, tort, artifice and fraud, to escape from the effects of a bad bargain, it is otherwise. In that case the vendee is entitled not only to compensatory damages, but to damages arising from the loss of the bargain, or the money he might have derived from the completion of the contract.” This exception is also recognised by Justice Woodward in Hertzog v. Hertzog, 10 Casey 428, and in McNair v. Compton, 11 Casey 23; and by Strong, J., in Hoy v. Gronoble, 10 Casey 11.
In the present case there was evidence to go to the jury of bad faith on part of Meason. If the testimony of Cope and Kaine be believed, Meason made the first proposition to buy the land, agreed to go in with them in its purchase, and to pay one-third of the price, and by their mutual agreement his name was left out of the contract to enable him to act seemingly as their agent and make a better sale for their joint benefit. If this be true, it is evident they were led to take an important step on his pledge of faith, and to incur a heavy responsibility for him at his request; whereby they have been seriously injured by his refusal to fulfil his pledge. Now this is the very principle on which the doctrine of estoppel rests; a belief, induced by another, whereby the former has been led to place himself in a position where it would be a fraud in the latter to shift him from it: Commonwealth v. Moltz, 10 Barr 530, “ Where (says Judge Bell) an act is done or a statement made by a party, the truth or efficiency of which it would be a fraud on his part to controvert or impair.” Ibid. Thus in Nass v. Van Swearingen, 10 S. & R. 146, it was declared that a party
But the learned judge charged that the loss was to be measured by the market value of the land at the time of the trial. This was an error. It is said, he took this rule from our former opinion in this case, where it was said, the measure would be the difference between the price Meason had agreed to pay and the present market value of one-third of the land. This was a misconception of the language used by our Brother who wrote the opinion. The subject of discussion there was the right of the plaintiff to recover the purchase-money under a parol contract for a trust in the face of the Act of 1856. The present market value was merely a general expression denoting the later or proximate period as distinguished from the time of the contract, and did not refer to the time of trial.
Farther on in the opinion, and still discussing the effect of the Act of 1856, it is said the measure is “ the difference between the price agreed and the actual market value of his one-third of the landshowing that it was the measure and not the time when it should be applied, which was in the mind of the writer of the opinion. The true period when the measure is to be applied is the time of the final breach of the contract. This always depends on the terms of the contract, in some the time of performance being fixed and in others not fixed. In the present. case it does not seem that any time was specified, and the parties continued making efforts to sell, Meason remaining in service until it was found the land could not be sold, and finally refusing to fulfil his agreement about the 1st of April 1867, according to some of the testimony. Where no time is fixed for payment, the general rule is to allow a reasonable time, but when the parties by mutual forbearance put off the time, the period would be when the final demand was made and the refusal to comply. But the rule laid down by the court below would place the defendant too much in the power of the plaintiff, who might purposely delay his
We think it was an. error also to omit to give the instruction asked for, that any loss in the value of the property caused by the want of care and the negligence of Cope and Kaine to keep it in a proper and ordinary state of preservation, should be excluded from the damages. So far as their own negligence or misconduct actually contributed to the depreciation in the price, they certainly ought not to be permitted to recover.
The last question relates to the non-joinder of Cope in this suit. The statement of the contract already given, shows that this was a mutual agreement, by which each party bound himself to both the others. It had a common object and a united purpose, to wit, the purchase and sale of the farm. The breach also is common to both of the other parties, and it is evident .the loss is joint. If an examination of title and encumbrances be made, or a survey to ascertain quantity, or deeds prepared, or other expenses incurred to complete the contract, it is obvious the liability to pay for them is common to all. So the loss by depreciation or loss of profit equally affects both. Indeed, there is no ground of severance in such a contract. If one pays more of a certain expense than the other, or of the purchase-money, it is the subject of adjustment between themselves, but the contract' being single on part of the defendant, his breach of it is single, and the injury comm'on to the other two. There might be a dozen members in such a purchase, and consequently as many suits would follow the single breach of refusing to pay the sum to which the defendant bound himself. This is contrary to justice and the policy which forbids a multiplicity of suits. The -case is one of express contract — not implied — and the remedy therefore follows the nature of the contraband is joint: Boggs v. Curtin, 10 S. & R. 213; Lee v. Gibbons, 14 S. & R. 111; Archer v. Dunn, 2 W. & S. 360. It is not like a contract implied from a payment of money at
Judgment reversed, and a venire facias de novo awarded.