Cannell v. M'Clean , 6 H. & J. 297 ( 1824 )

Buchanan, Cli. .7.

delivered the opinion of; the court. This is an appeal from the judgment of the court of Kent,. county, in an'action on a bond, with condition for the conveyance of a tract of land on or before the first day of December in the year 1818, in which there is a recital, setting out the payment by the appellee,'the obligee in the bond, of two'thousand two'hundred and twenty'dollars, to the appellant, the obligor, as the consideration for the land.

It appears by the admissions in the cause, that no deed of conveyance has ever been executed or tendered to the appellee by the appellant, for the land contracted to be conveyed, and the action was brought- to reeov er damages for a breach of the condition of "the bond.

At the trial below, the court was of opinion,--and among other things sp instructed the jury, “that the amount of the' purchase money paid by the obligee, to the obligor, was the proper measure of damages, with interest from the time of, payment, unless possession was delivered to the obligee, in which case no interest "ought íq be allowed.”. And. the only question, necessary to be decided here, "is whether that court did right in so instructing the jury. ' -

In an action upon a covenant of seizin, in a deed, of conveyance of land, the amount of consideration paid, with interest, furnishes the correct rule of damages, and not the value at the time of the eviction.

The 'recovery is restricted to the value of the land at the time of making the contract, because the covenantor seizin' is broken, if the grantor has no title, the moment the deed' is delivered, and not by the eviction, which is the conse-' quence of the want of title in the grantor. The land, as it existed,- and was worth when the covenant was entered into, is to be considered as’ aloiie the' subject matter of.'the contract, and not'the appreciate^ or diminished value of it, by causes not existing.or not contemplated by the parties at the timefand the price then agreed upon and paid, furnishes, a safe guide to the' yalucof thp land, át the tíme of the contract of sale, and forms, with the interest, a-fair measure of damages, as conducive to'justipe, as any other, and less liable to objection,. because i't-is a certain rule, which places the extent of the liability on the one hand, and of indemnity on the other, before the respective parties to the contract, ánd guards them against the ruinous consequences of unforeseen-changes In the value of the property 3 and if this had been an action bn a covenant pf seizin, the'direction given to the jury wo,uld nave been on stained by this court. But a covenant to convey land en a subsequent day is of a different character.

In such case the contract is to convey the land, not such as it is.at the dine of entering into the covenant, but such as it n>ay.be, whether of increased or diminished value, at the time stipulated for the conveyance; and in a suit instituted ou such a covenant, the question of damages is go Terncd by the general rule, that in an action for the nondelivery of specific property on a given day, the measure of damages is the price or value of the thing on the day it ought to have been delivered, and when the covenant was broken; which, as a general principle, is as applicable to contracts respecting real as personal property.

la either case the purchaser is entitled to the thing eon™ traded for, at the price agreed upon, and consequently to the benefit of any increased value; which would be lost to him if the damages were restricted to the price or value at the time of making the contract.

Buell a rule would work great injustice to purchasers, by enabling the sellers, whenever the subject of contract should become of increased value, to discharge themselves -from their contracts, by returning the consideration, and turning the enhanced value to their own benefit; and on the other hand, to comply with their contracts in case of a deterioration in value, and throw the whole loss upon the purchasers, and would be a strong inducement to fraud. Whereas the rule, that the value at the time of the breach of contract, (whether increased or diminished,) shall be the measure of damages, can in general be productive, of injury to neither party.1 If there should be an increase in value, the purchaser, being entitled to the thing itself, there is no injury or hardship imposed upon t]ie vendor, (if he will withhold it in violation of his contract,) in compelling him to pay Hie value of it, and not permitting him to discharge himself from his engagement, by reluming only the consideration paid, and pocketing the difference himself against right; and on the contrary, if their be a diminution in value, no injury is done to the purchaser, in not permitting him to recover more than such diminished value; since if the contract had been fulfilled, he would have had the property subject to that deterioration, and she restricting his recovery to the diminished value, places him only in the predicament in which he would have stood if (lie contract, had not been broken. But if he should be suffered to re™ s.ort to the amount of the consideration as the measure oil damages, it would work a hardship upon the defendant, the subject of whose engagement, was the land or thing only, such as it might be at the time stipulated for conveyance, or delivery, without regard to what should be the then value, which did not at all enter into the qqntaict. Thu safest rule therefore, and- one which is best calculated to promote justice, is that the value at the time of the breach of contract shall be the measure of damages.

In this case the action was brought on a bond with conn dition to convey land, at a subsequent, day, and not for damages on ordinary covenant to qonveyi but the principle governing one case is equally applicable to the other.

It does not appear that any improvements have been made on the land since the contract was entered into, or that any artificial value has been given to it; the general rule, therefore, here laid down, is peculiarly applicable to this case,, and we think that the court below erred in restricting tliQ damages, by t.he direction give# to the jury, to the amount of the price paid. judgment, reversed.