Busbee v. Chapman

Hill, J. Where a vendor agrees to accept, as part consideration for realty sold, the erection by the vendee of certain walls at a named valuation, which agreement the vendee fails or refuses to perform, the vendor can not maintain a suit to recover the balance of the consideration as purchase-money of the land, but is relegated to an action for damages for a breach of the contract by the vendee. Butler v. Sams, 138 Ga. 748 (75 S. E. 1127); Chamberlain v. Wolf, 112 Iowa, 176 (83 N. W. 893); Westchester & P. R. R. v. Broomall, (Pa.), 3 Atl. 444; 2 Warvelle on Vendors (2d ed.), § 939; 2 Sutherland on Damages, § 576. (a)' Accordingly, where a petition was filed by the vendor against the vendee for the agreed value of the walls to be erected by the latter, as the balance of the purchase-price of the land, the petition was subject to the general. demurrer filed, and the court erred in not sustaining it. Judgment reversed. All the Justices concur. . Complaint. Before Judge Whipple. Dooly superior court. November 6, 1911. Joseph II. Hall and Busbee & Busbee, for plaintiffs in error. J. T. Hill and J. W. Dennard, contra.