Krepp v. St. Louis & San Francisco Railroad

BLAND, P. J. 1. The decree, divesting title out of defendant to three hundred and sixty acres of land and investing plaintiffs with the title thereto, was not only authorized by the pleadings, but was consented to by the defendant and furnishes no ground for complaint, nor do we see any valid ground for'the complaint of defendant that the two judgments are rendered in one and the same decree and entry of record. It is true that the judgment is double. It is, first, a decree divesting and investing title to real estate and, second, a judgment for damages and interest, but they are separately stated and clearly distinguished. The judgment recites that the decree is one on the first count and recites that the money judgment is on the second count ■of the petition, and it shows that the decree on the first ■count was the result of a submission of the issues on that count to the court and that the judgment on the second count was the result of the verdict of the jury on a trial of the second count. There is no more confusion or intermingling of the two judgments than if each had been separately set forth in full on the record by separate and distinct entries. 2. The chief contention of the parties is in respect to the measure of damages on the second count of the petition. Defendant contends that the purchase price of the Nesbit forty acres, to-wit, one dollar and fifty cents per acre, with legal interest, is the correct measure of damages. On the other hand, plaintiffs claim that they are entitled to the benefit of their bargain and to recover the actual value of the land at the [102] time that it should have heeu conveyed. In actions for breach of warranty of title the measure of damages is the purchase price with interest. Lambert v. Estes, 99 Mo. 150; Hutchins v. Roundtree, 77 Mo. 500; Hazelett v. Woodruff, 150 Mo. 534. The same rule does not apply where the action is for a breach of contract to convey land, but the rule adjusts itself to the varying conditions of each case to afford compensation to the wronged vendee. In Kirkpatrick v. Downing, 58 Mo. 32, Wagner, J.? reviewed the conflicting authorities as to the measure of damages in such cases and approved the following rules as sustained by the best considered cases. First, that when the vendor is able to comply with the contract, but for any reason refuses to do so, the vendee should recover not only the deposit (or the purchase price paid and expense of investigating title), but damages for loss of his bargain, and that the measure of damages was the profits which it was shown he could have made on a resale. Second, that where a party contracts to sell and he has no title, the vendee is entitled to recover his expense, and beyond this damages for the loss of his bargain. Third, when the vendee has not actually tendered performance or made an available tender, but in consequence of the acts of the vendor, or otherwise is still entitled to maintain a suit for breach of the contract on the part of the vendor in not conveying, the measure of damages would be the difference between the contract price and the value of the land at the time of the breach. Fourth, where there is no evidence given showing any change in the situation, the consideration paid and interest will be taken as the correct value of the land, but where there is evidence given showing a change in the value of the land, the value at the time the breach occurred and when the conveyance ought to have been made, shall furnish the standard of damages. In Hartzell v. Crumb, 90 Mo. 629, following the [103] Kirkpatrick case, and the case of Hopkins v. Lee, 6 Wheat. 109, it was held that it makes no difference in principle whether the contract he for real or personal property. In both cases the vendee is entitled to have the thing agreed for at the contract price and to sell it himself at its increased value; if it be withheld, the owner ought to make good to him the difference. The court further held that the good or'bad faith of the vendor should be excluded from consideration in estimating the damages, refusing to follow Flureau v. Thornhill, 2 W. Black 1078, and other cases following the doctrine of that case. In Matheny v. Stewart, 108 Mo. 73, the cases of Hartzell and Kirkpatrick were followed and approved. In McGee et al. v. Bell et al., 70 S. W. 493, the Missouri Supreme Court, in banc, held that where a grantor fraudulently represented to the vendee that the tract of land sold contained eighty acres, whereas it contained but sixty-one acres, the grantee might retain the land purchased and recover for the discrepancy and that it was not error'to estimate the measure of his recovery at the amount per acre for which the whole tract sold; that, in the absence of proof to the contrary, the measure of recovery was such a portion of the entire price as the amount lost is to the entire tract. Whatever may be the rule elsewhere, we think the cases above cited from this State establish the same rule here for the measure of damages for the breach of a contract to convey land (where the vendor had no title) as is applied for the measure of damages for a breach of contract to convey personal property, that the plaintiffs were entitled to the benefit of their bargain; that is, that if the Nesbit forty acres, which plaintiffs bought at one dollar and fifty cents per acre and paid for, was actually worth one hundred and seventy-five dollars, then they were entitled to recover its actual value at the time it should have been conveyed, irrespective of the [104] good or bad faith of the defendant in making the sale. Neither of the instructions given or refused announced the correct rule for the measure of plaintiff’s damages, but the verdict is supported by the uncontradicted evidence of a number of witnesses, who were not impeached. . They testified that they resided either adjoining or near the four-hundred-acre tract, and all testified that the Nesbit forty was the most valuable of the ten forties in the entire tract. The least estimate of its value by any of them was one hundred and seventy-five dollars, so that notwithstanding error in the instructions as to the measure of damages, the verdict is manifestly for the right party and for the correct amount. 3. In respect to the interest, the evidence shows that plaintiffs had built their dwelling near the Nesbit forty; that they had used water all the time from a spring on that forty for domestic purposes and also for their stock; that they had all or a portion of the forty under fence and had never been disturbed in their possession. Plaintiffs were not entitled to both the use of the land and to interest (Hutchins v. Roundtree, supra), and the ten dollars and twenty-five cents allowed as interest should be remitted. ' In this view of the case it is unnecessary to decide whether or not this clause in the verdict, to-wit, “and interest at the rate of six per cent from March 12,1901, ” authorized the court to calculate interest on the damages awarded (one hundred and seventy-five dollars) and render judgment for both damages and interest. 4. It is insisted that as the judgment divested title to real estate, this court has no jurisdiction of the cause of action. It is only where the title is in dispute and in issue that this court is denied jurisdiction in suits concerning real estate. There is no controversy here about the title to the land, no dispute as to any of the material facts of the transaction and the defendant in its answer consented that the circuit court might render [105] the very judgment it did render, divesting it of title to three hundred and sixty acres of the land. An issue of fact is made by an affirmative allegation of its existence by one party and the denial of that allegation by the opposite party. No such allegation or denial concerning title to any of the real estate involved in litigation, is found either in the petition or answer. We, therefore, conclude that this court has jurisdiction of the appeal. The judgment on the first count is affirmed. As the plaintiff’s were not entitled to the recovery of interest on the second count, the judgment will be reversed and remanded on that count, unless within ten days from the date of the filing of this opinion, the plaintiffs remit ten dollars and twenty-five cents from that judgment. If the remittitur is entered within ten days, the judgment on the' second count will also stand as affirmed. Beyburn and Goode, JJ., concur.