Thompson v. Sheplar , 1873 Pa. LEXIS 6 ( 1873 )

The opinion of the court was delivered, by

Williams, J.

— It is well settled law in this state that an action will lie on a verbal agreement for the sale of land, and, in the absence of fraud, that the measure of damage for its breach is compensation for the money paid and expenses incurred on the faith of the bargain. If no consideration has been paid, and no expenses incurred, only nominal damages are recoverable. But where there has been fraud in the sale, a different rule as to the measure of damages obtains. In such cases it has been uniformly held that damages may also be recovered for the loss or value of the bargain. But if no fraud was meditated and designed in making the contract, the refusal to perform it is not such fraud as will enable the vendee to recover compensation for the loss or value of the bargain. If damages for such loss were allowed to be recovered for the breach of the contract, on the ground that the refusal to perform it was in itself a fraud, it would, in most cases of parol sales, operate as a virtual repeal of the Statute of Frauds; for, though the vendee might not recover the land for which he bargained, of what avail would be the statute if he could recover its value in money ? It is obvious that such a recovery would, in almost every case, be equivalent to specific performance. It follows that the court below erred in affirming the plaintiff’s first point, and in the instructions given to the jury in answer to the defendant’s tenth and eleventh points. But there was no error in refusing to charge as requested in the defendant’s eleventh point. If the proposition set out in the first clause -of the point had stood by itself, it should have been affirmed, but taken in connection with the assumption in the later clause, that “there is no such evidence in the case as would justify the jury in finding any design or intent upon Mr. Thompson’s part, at the time of said purchase, to defraud said Sheplar,” it would have been error to affirm it. There was abundant evidence, if believed, to justify the jury in finding that Thompson was a trustee, ex maleficio ; and if so, the plaintiff was entitled to recover as damages the difference between the amount of the tender and the actual value of the land at its date. But as the question of the defendant’s alleged fraud in making the purchase was not submitted to the jury, the judgment must be reversed, and the cause sent back for another trial.

There was no error in the admission of Henry Sheplar as a witness; and there is nothing in the other assignments that requires discussion. The defendant’s second, fifth, sixth, eighth and ninth points were properly refused.

Judgment reversed, and a venire facias de novo awarded.