Whitehead v. Carr

The opinion of the Court was delivered by Huston, J. It was said during the argument, that this suit was brought for the purpose of obtaining an opinion of this court, on the point, whether and in what cases an action lay for not complying with a parol contract to sell and convey lands. If the question were new,and there were no decisionson the subject, and it were necessary to decide it in this case, it would deserve and obtain very serious consideration. There are decisions and dicta on the subject, in the English an*d in our own courts. In 4 Dall. 152, we find an action of this kind at nisi prius, and the court admitted evidence of the parol agreement, saying, “ certainly an action will lie to recover damages for the non-performance of such an agreement,” but in that case there was more than a bare agreement, for the whole purchase-money had been paid and accepted by the seller of the land, who afterwards refused to convey or deliver possession. In 1 Binn. 450, Tees v. Ewing, it is again decided that such an action will lie, and the 'court said, the jury will give such damages as, under the circumstances of each case, appear reasonable, and these damages will often be very small. Still it is a grave' question, in what case and under what circumstances an action will lie. To the present suit there are two fatal objections. First, the agreement was made between Carr and Johnson, and no evidence that the name of Whitehead was mentioned. Johnson went from home, and Whitehead had a conveyance from Carr to Johnson and Whitehead, prepared, and tendered it and the money to Carr, who refused to execute it Now there was no agreement to convey to those two, and if Carr had executed the deed, he might have been as liable to an action from Johnson as he now is. Carr never was asked to complete the parol contract, but'to make in writing a contract different from the alleged parol one. Whitehead cannot, alone or with Johnson, support a suit for non compliance with a contract which was never made. There is another objection to the recovery in, this suit, even if brought by. Johnson alone. The proof, to take it in the strongest terms proved, is that Carr said his title was as good as any; another witness says he refused to show his title, but told Johnson he might go to the recorder's office and see them ; no witness says that Carr engaged to execute a deed with clauses of general warranty. Now there is a difference between saying “my title is perfectly good, go to the recorder’s office and examine it, or let your counsel examine it,” and saying, “my title is good, and I will give a deed with a clause of general warranty.” The first expression puts the buyer in possession of means of information and leaves him to exercise his own judgment, or take advice of counsel, and the consequence [370] is at the buyer’s risk. The agreement to give a warranty, to a certain extent supersedes the necessity of an examination of title, and throws the responsibility on the vendor. For these reasons this suit cannot be supported. 1 will add, that where by the parol agreement as proved, it was the understanding of the parties that it was to be reduced to writing at a future time; where no act is done, no money paid, and no expense incurred, and where, on attempting to reduce the agreement to writing, there arises a difference as to the terms or as to matters not mentioned at the parol agreement, there is no authority for saying an action will lie for non compliance with such parol agreement, the terms and effect of which, are really understood differently by the parties. The bills of exceptions were abandoned by the plaintiff in error. Judgment affirmed.