Baldwin v. Munn

By the Court, Sutherland, J. Under the pleadings in this cause, the affirmative of all the issues was held by the plaintiff. The pleas were nothing more than a denial of the material allegations in the declaration; they concluded to the country, and formed perfect issues. The plaintiff did not attempt to sustain the averment in his declaration, but offered evidence to shew a waiver of performance on the part of the defendant; and the first question which arises is, whether such evidence was competent under the pleadings. The case of Phillips and Butler v. Rose, (8 Johns. R. 392,) is precisely in point. The plaintiffs in that case had covenanted with the defendant to build a mill in a certain place and by a specified time. In an action upon the covenant, [404] they averred they erected the mill at the place and by the time mentioned in the agreement. It was held, that evidence that the mill was erected at a different place and after the time, by the consent and agreement of the defendant, did not support the declaration. The court remark that the contract must be proved as it is laid, or the defendant has no notice of what he is called upon to answer. Evidence that the contract was enlarged by a paroi agreement will not support the declaration. The same doctrine was held in Freeman v. Adams, (9 Johns. R. 115.) That was an action of debt upon an arbitration bond. The defendant, after craving oyer of the bond and condition, pleaded that the arbitrators did not make an award in the time limited by the condition of the bond. The plaintiff replied that the time for making the award was enlarged by agreement, under the hands and seals of the parties, and that the award was made within the enlarged time. The defendant demurred to the replication, and the demurrer was sustained by the court. The court held that the remedy of the party was upon the submission implied in the agreement to enlarge the time. They referred to the case of Phillips v. Rose, as an authority to shew that if a contract be changed, you must not declare on the original contract; and it is observed that there is a wide difference between the case of a suit to enforce the original contract in consequence of such subsequent agreement, and a plea of discharge by the obligee from a strict and literal compliance with the obligation, according to the doctrine in Fleming v. Gilbert, (3 Johns. R. 528,) and in Keating v. Price, (1 Johns. C. 22.) In Little and another v. Holland, (3 T. R. 590,) the plaintiff had covenanted to build two houses by a certain time for £500. In an action of covenant for the money, he averred' that the houses were built within the time. It was held that evidence of an enlargement of the time by paroi agreement, and that the houses were finished within the enlarged time, did not support the declaration. The case of Brown v. Goodman, in a note to Little v. Holland, maintains the same doctrine. These cases are both referred to by this court in Phillips v. Rose and Freeman v. Adams, as solemnly and definitive [405] ly settling this point. The same principle was also recognized in Hasbrouck v. Tappen, (15 Johns. R. 204,) and expressly adjudged in Jewell v. Schroeppel, (4 Cowen, 566.) The evidence, therefore, did not support the declaration, and the plaintiff should have been nonsuited. But, secondly, if the action could be sustained, what would be the rule of damages in such a case. The defendant was a bona fide vendor ; he covenanted in good faith to convey the premises to the plaintiff, believing at the time that his title was good ; before any part of the consideration money was paid, he discovered the defect in his title, and refused to receive the purchase money, and nothing has in fact been paid by the plaintiff. Where land is actually conveyed with covenants of seisin, general warranty and quiet enjoyment and the consideration money is paid, the vendee, upon eviction, can recover only the consideration paid, with interest for six years, and the costs of defending the suit which terminated in his expulsion. The measure of damages is the value of the land at the time of the sale, and not at the time of the eviction; and the price agreed upon by the parties is conclusive evidence of such value. If the vendee were not responsible to the true owner for the mesne profits, no interest could be allowed; the use of the land would be considered equivalent to the use of the money : but being responsible for the profits of the land for six years, he must be allowed interest on the money paid by him for the same period, of he will not be indemnified. This doctrine is fully established in this court. It was very elaborately considered by Ch. J. Kent, in Staats v. The Executors of Ten Eyck, (3 Caines, 111,) on the ground of principle and authority, and has been sanctioned and confirmed by many subsequent cases. (4 Johns. R. 1. 5 id. 49, 85. 7 id. 173. 9 id. 324. 13 id. 50. 4 Dall. 441. 2 Mass. R. 433, 455. 3 id. 523. 2 Wheaton, 62, note c., where all the cases upon this point in the different state courts are well collected.) In an action on the covenant against incumbrances in a deed, the plaintiff can recover only the amount paid by him to extinguish the incumbrance ; but if he has [406] paid nothing, no matter what the amount of the lien may be> h® can recover nominal damages only. (Delavergne v. Norris, 7 Johns. R. 358. 4 Mass. R. 627. 13 Johns. R. 105.) If these principles are just in relation to the covenant of gen - eral warranty, and. of quiet enjoyment, and against incumbrances, I do not perceive why they are not equally applicable to the covenant to convey, where the covenantor has acted in good faith, and refuses to convey because his title has in fact failed. The reasons which are urged with so much force by Ch. J. Kent, in Staats v. Ten Eyck, (3 Caines, 115,) in favor of the rule of damages adopted in that case, certainly apply with at least equal force to the case in question. He observes that no prudent man would venture to sell his property, if there was no limit to the damages for which he would be responsible in the event of a failure of his title. He asks, who, for the sake of £100, would assume the hazard of re-paying as many thousands, to which value the property might rise by causes not foreseen by either party, and which increase in value would confer no right on the grantor to demand a further sum of the grantee ? And he says the safest general rule is, to limit the recovery as much as possible to an indemnity for the actual injury sustained, without regard to the profits which the plaintiff has failed to make. The same rule is laid down by De Grey, Ch. J., in Flureau v. Thornhill, (2 Bl. 1078.) He says, upon a contract for a purchase, (of land,) if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think the purchaser can be entitled to any damages for the fancied goodness of the bargain which he supposes he has lost. If the vendor acts in bad faith, and refuses to convey because the property has increased in value, and with a view of putting the enhanced value in his own pocket, it becomes a case of fraud, and the plaintiff would clearly be entitled either to compel a specific performance in equity, or to recover by way of damages the difference between the contract price and the enhanced value when the conveyance should have been made. [407] The supreme court of the U. S., in Hopkins v. Lee, (6 Wheaton, 109,) it is true, appear to have held that when the vendor fails to convey according to his contract, the measure of damages is the value of the land at the time of the breach, and not the price fixed in the contract. Lee, in that case, ■ had sold and conveyed to Hopkins an estate, for which Hopkins was to pay, in part, in other lands at settled prices. He failed to convey, and the action was for a breach of that covenant. It will be perceived that this was substantially a case of exchange of lands. Very different considerations may be applicable to such a case, from the ordinary case of a mere failure to convey where the consideration money has not been paid. It is also to be remarked, that the rule of damages upon an eviction of real estate does not appear to have been settled in that court when the case of Lee v. Hopkins was decided. Here the rule is settled, and it appears to me to control, by the force of analogy, the decision of this cause. Judgment of nonsuit' must be entered on the first ground which was considered, according to the stipulation of the ease.