Carner v. Peters , 9 Pa. Super. 29 ( 1898 )

Opinion by

Smith, J.,

On a contract of sale, at common law, if the vendee refused to comply, the vendor might either tender performance and sue for the price, or resell and hold the vendee for the difference between the price thus obtained and the contract price. The statute of frauds has modified this rule as to parol contracts for the sale of land, and leases for more than three years; in effect, prohibiting the recovery of the contract price in such cases. The vendor, however, may still resell, and hold the vendee for the difference in prices: Ewing v. Tees, 1 Binney, 450; Irvine v. Bull, 4 Watts, 287; 7 Watts, 323; Ashcom v. Smith, 2 P. & W. 211; Bowser v. Cessna, 62 Pa. 148. But while this right of the vendor to resell and recover the difference is supported by the authorities cited, it should be noticed that later cases emphasize the doctrine that parol contracts relating to the sale or demise of real estate, when within the statute of frauds, cannot be made a basis upon which to recover damages for the loss of the bargain, or for what may amount, equivalently, to specific enforcement, in the absence of fraud in the contract or proof of special injury caused by the refusal to perform. It may well be doubted whether, under the trend of the later decisions, a vendor can recover the difference in price on a resale where this amounts, substantially, to all the pecuniary advantage to be derived from specific performance of the contract, in the absence of fraud or of direct loss growing out of the breach. But we are not now required to decide that question.

In the case before us there was no proof of fraud or bad faith in the original agreement, nor was there any evidence to show that the vendors were misled or otherwise injured by the parol contract, or by the failure of the defendant to fulfil it. Tbe vendors did not resell the interest contracted for by the vendee, and it does not appear that they ever tendered him a deed or other instrument of title therefor. They retained this interest and now seek to hold him for the difference between its estimated value and the contract price.

There is no authority for such a course. The vendors cannot retain the property and recover part of its price. On the vendee’s default they have a right to rescind the contract, and the unequivocal retention of the property operates as a rescission. Such rescission puts an end to the contract as the basis of an action for substantial damages. We think, however, that the plaintiffs are entitled to a judgment for nominal damages. While no actual damages have been shown, and no invasion of a legal right is apparent, yet, it would appear from the decisions on this question, that a verdict should have heen rendered for the plaintiffs for nominal damages. It will not be necessary to send the case back for this purpose, as this court has the power, to enter the proper judgment.

The judgment of the court below is reversed and judgement is now entered for the plaintiffs and against the defendant for six cents damages and costs.