7 Mo. App. 26 | Mo. Ct. App. | 1879
delivered the opinion of the court.
There was judgment for defendant upon demurrer in the court below, and the question is as to the sufficiency of the petition. The substantial facts alleged are, that the defendant employed real-estate brokers to purchase from the plaintiffs a lot of ground at the price of $600 a foot, whereupon the brokers, for the defendant, offered in writing, in his name, to buy from plaintiffs the land at the sum named, the plaintiffs to pay the brokers their usual commission; that this offer was by the plaintiffs accepted, and that thereupon, on the second day of March, 1874, the plaintiffs executed to defendant their warranty deed, “ and did thereby convey to the defendant the said lot of ground upon the terms of his said offer to purchase the same.” The petition then alleges a delivery of the deed to the brokers, and that the latter, “ as the agent of the defendant thereunto duly authorized, for defendant, did, on, etc., duly accept the deed;” that the defendant, though often requested to pay the purchase-money of the land, refused and still refuses so to do. Judgment is asked for the amount of the purchase-money.
This petition is bad as the presentation of either a legal or equitable cause of action. The plaintiffs here seek to recover the purchase-price. Not only is the breach assigned the refusal to pay the purchase-price, and not the non-completion of the purchase itself, but an attempt is made, however ineffectually, to aver that the title passed. Thus it is, even disregarding the prayer, not a good petition for damages for breach. It is averred that the deed was accepted, and on this basis the action is for the whole purchase-money.
If, indeed, the seller is not content with damages, he may have specific performance and get his purchase-price. But he cannot get rid of the tests imposed by equity by bringing a common-law action for the purchase-price. At common-law, upon a breach his right of action accrues to him, and whether' the mere subject-matter of the contract be land or goods, the action is a personal right which he may enforce until it is barred by the statute. But if the seller elects to take the purchase-money, he must do so at once ; and thus, on the basis that he is entitled to it, the money
Whatever doubt there may have been as to the proper measure of damages in cases of this kind, it seems now well settled, and by the highest authorities, that the seller is not entitled to recover the money agreed to be paid for the land, but only the difference between the contract price and the market value of the land at the time of the breach. Railway Co. v. Hawkes, 5 H. L. Cas. 376, per Lord St. Leonards; Laird v. Pein, 7 Mee. & W. 474, per Baron Parke: Railroad Co. v. Evans, 6 Gray, 25.
The judgment of the court below is affirmed.