19 Pa. Super. 160 | Pa. Super. Ct. | 1902
Opinion by
Plaintiff brought her suit in assumpsit to recover damages for the breach of a parol contract alleged to have been made by the defendant to convey real estate purchased by the latter at an orphans’ court sale for the plaintiff, returned by the administrator as sold to the plaintiff but the return of which, at her request, was subsequently amended, so as to show a sale to the defendant. The defendant paid the entire purchase money and promised Subsequently, as the plaintiff alleged, to convey the property to her, upon the repayment of the amount which he had been compelled to pay in discharge of his bid. The plaintiff subsequently tendered the amount of his bid without interest and demanded a conveyance which the defendant refused. The action was for damages for the refusal to convey, in accordaúcé with the alleged promise. The question of the promise or parol agreement to convey was submitted to the jury and found in favor of the defendant.
In view of the verdict of the jury, the question as to thé admissibility of the testimony is neither practical nor material for, having found for the defendant upon the main question, they did not consider and did not reach the point where they could consider the question of damages. The evidence, however, was properly excluded. The measure of damages was not the difference between the actual value of the land and the amount which the defendant paid therefor, but only the actual damages sustained by virtue of the breach. In Hertzog v. Hertzog, 34 Pa. 418, it is held that the statute of frauds, although preventing specific performance of a parol contract to convey land, does not prevent an action for damages for a breach of the contract, and it is clearly pointed out that to allow a recovery for the value of the land would be equivalent to specific performance and that, therefore, the value of the land cannot be shown, in order to determine the measure of damages, but only the actual value of the services or the money paid. In this case, however, no money was paid, no services rendered and the damage would be simply, as held by the court, what was sustained by the plaintiff in removing from the premises. Hertzog v. Hertzog, although overruling a number of previous cases, was the unanimous opinion of the court and is so thoroughly grounded in reason and has been followed so constantly since that there can be no question in regard to the principle upon which it rests. The offer was, therefore, properly rejected.
The second assignment of error relates to the admission of the testimony of Johnson, the attorney for the defendant and the husband of the plaintiff, in another transaction which had
The assignments of error are both overruled and the judgment affirmed.