author: Cooley, J.

text:
    John Allen v. John Atkinson.

      Contracts f07'the sale of land: Presumption as to title: Rights of vendee. Where one contracts to sell and convey land, and tlie contract is silent as to the title, it is to be assumed that tbe title is good; and it devolves on tlie vendee, if he questions it, to show the defect. But. he has an undoubted right to a good title; that the deed shall contain proper covenants, and that the title shall be a marketable one, not open to reasonable objection. But when there is an apparent incumbrance of record, the vendee has a right to demand a reasonable time for investigation. Thirty days is not unreasonable for this purpose, when the mortgagee resides at a distance, and it does not appear that, in the meantime, the relation of the parties has been changed.

      Tender of purchase money by vendee under a land contract. When a vendee, under a land contract, tenders money in performance of his obligation, the vendor ‘ has no right to the rnonej', except upon the condition of a simultaneous delivery of the deed; - and, therefore, in an action against the vendor for the breach of such a contract, it is not necessary to show that the tender has been kept good.

      Interest on land contracts. Whore a land contract is silent as to interest, it is not demandable so long as the vendee is not in default.

      Breach of land contract: Mection of remedies: Waiver of specific perfot'mance: Measure of damages. A party having a choice of remedies for the willful breach of a land contract, — by bill in equity for a specific performance, or by action for damages sustained by the breach, — will not be deprived of his remedy by action, because, for a consideration moving from a third party, he has waived his*right to a specific performance.
    The measure of damages which the vendee, in such a*case, will be entitled to recover from the vendor for the breach of the contract, will be the difference between the actual value of tbe land, at the time of the breach, and the sum agreed to be paid, less the amount of the, consideration, received for the waiver.

      Heard July 11.

      Decided October 5.

    Error to St. Clair Circuit.

      This was an action of assumpsit brought by John Atkinson in the Circuit Court for the County of St.- Clair against John Allen, to recover damages for the breach of a contract to sell and convey a lot of land. The cause was tried before the Circuit Judge, Avhose findings of facts and conclusions of law are set forth in the record.
    Findings. — “The Court having been requested to find the facts and his conclusions of law thereon, finds the facts as follows:
    “ 1st. That the plaintiff and defendant, on the 30th day of July, 1866, entered into an agreement, in Avriting, of Avhich the folIoAving is a copy: ‘ Memorandum of an agreement made this 30th day of July, 1866, betAveen John Allen and John Atkinson, both of St. Clair county, Avitnesseth: That said John Allen has this day sold to said John Atkinson all that piece or parcel of land contained Avithin the enclosure on the corner of Seventh and Pine streets, on the north side of Pine street, for which the said John Atkinson is to pay the sum of tAvo thousand dollars— $1000 doAvn, and $1000 in two equal annual payments, Avith interest at ten per cent per annum. Witness our hands and seals the day and year first above written. John Allen, John Atkinson.- In presence of O’Brien J. Atkinson, James J. Atkinson.’ Which agreement was after-wards acknowledged and recorded.
    “ 3d. That this agreement referred to the lots described ¿a the plaintiff’s delaratiou, and was intended by the parties to apply to them, and none other.
    “3d. That the next day after the contract Avas made, Allen and his wife called at the office of the plaintiff, for the purpose of making a deed of said premises, in pursuance of said agreement; and while the deed was being prepared, plaintiff inquired about the title to the lots; and there being no abstract furnished by defendant, plaintiff asked time to examine the title, before the papers were finally executed and delivered — plaintiff at same time saying to defendant that he would pay him such money as he wanted to use in the meantime — but refusing to execute the papers until he should first have an opportunity to examine the title. Whereupon the defendant got angry, and left the office, refusing to furnish an abstract.
    “ 4th. That within the next thirty days, plaintiff became satisfied that the title to said premises was good, and on the 20th day of August, 1866, tendered to Allen $1000, in legal-tender Government currency, and his notes, secured by a mortgage on the place, for one thousand dollars, according to the terms of the agreement, and demanded a deed; but the defendant refused to accept the tender, or make the deed; the defendant being presented by the plaintiff with a deed prepared and ready for his signature. That upon such refusal, plaintiff informed said defendant that said money so tendered, and the notes and mortgage, would remain in the hands of O’Brien J. Atkinson, ready for him at any time he should choose to accept it, and give a deed; but there was no proof that the tender was kept good.
    “ 5th. That at the time said agreement was made, and at time of trial, said lots appeared, by,the records of said county, to be incumbered by a mortgage to H. H. Emmons, dated Aug. 10, 1849, and due four years from date; but although the same was not discharged of record, yet it had in fact been paid.
    “6th. That on the 30th day of November, 1866, one George W. Pinkham negotiated with Allen for the purchase of said property. The plaintiff had, before that time, filed his bill for a specific performance of said agreement, against said Allen. And said Pinkham having learned the fact, and being anxious to purchase said premises, went to said Atkinson, and after some negotiation, in consideration of $100, paid to plaintiff, procured him to release his right to a specific performance, and look to Allen personally for any damage resulting from the non-performance of said agreement. And said plaintiff gave said Pinkham a receipt, in the words and figures following, viz: Beceived of G-eorge W. Pinkham, $100, for which I waive my right to a specific performance of a contract, dated July 20, 1866, between myself and John Allen, and agree to look to John Allen, personally, for any damage resulting to me by reason of said contract. John Atkinson. Port Huron, Nov. 30, 1866.
    “ 7th. That at the same time, Allen’s solicitor stipulated with plaintiff that the bill for specific performance be treated as discontinued without prejudice.
    “8th. That on said 30th of November, 1866, Allen and his wife conveyed the premises to Pinkham, by a warranty deed, with full covenants, with this exception, written under the covenant of warranty, to wit:
    “‘Except as to the claim of John Atkinson, under and by virtue of a memorandum of agreement between John Allen, of the first part, and said Atkinson therefor, under which said Atkinson claims to be entitled to a deed upon certain terms.’
    ’“9th. That Atkinson, at the time he made the receipt, and received the $100, knew of the contemplated trade between Pinkham and Allen.
    “10th. That at the time the agreement was made, and at the time of tender, the market value of the property was two thousand eight hundred dollars.
    “My conclusions, from the above facts, are, that the plaintiff is entitled to recover the difference between the price fixed by the contract, and the market value thereof; and that he should have judgment therefor, less the $100, received by him from Pinkham, to wit: $700.”
    Eor which sum judgment was entered, and the defendant brings the cause by writ of error to this Court.

      W. T. Mitchell, for plaintiff in error.
    I. By the proofs and findings of the said Circuit Judge, it does not appear that Atkinson was ready to complete and fulfill the contract, as set forth in the declaration, on his part; nor that Allen did not fulfill the same on his part. The contract, by its terms, required the plaintiff below, (defendant in error,) to pay §1,000, down, which was not done, and which defendant in error refused. to pay, the next day, except on terms. Atkinson was then entitled to his deed, which Allen offered to make, and did substantially make; and if the title was then perfect, as it after-wards proved to be, Atkinson was bound to accept the same, and pay the money agreed upon.—Hill v. Fisher, 34 Maine, 143; Perry v. Wheeler, 24 Vt., 286.

      II. After making the supposed tender, by Atkinson, he did not keep the same good. Tenders are stricti juris, and nothing will be presumed in their favor.—Shotwell v. Dennman, Coxe, 174. In order to constitute a legal tender, it is necessary, as a general rule, that the money be actually produced, and placed within the power of the creditor to receive it.—Sands v. Lyon, 18 Conn., 18. A tender must be continually ready, or it will be bad.—Besancon v. Shirley, 9 S. & M., 457; Jarboe v. McAtee, 7 B. Mon., 279; DeWolf v. Long, 2 Gilman, 679; Sloan v. Petrie, 16 Ill., 262; Livingston v. Harrison, 2 E. D. Smith, 509; Walker v. Brown, 12 La. An., 266; Cullen v. Green, 5 Harrington, (Del.), 17; Mason v. Croom, 24 Georgia, 211; Brock v. Jones, 16 Texas, 461; Clark v. Mullenix, 11 Ind., 532; Baker v. Brink, 5 Clarke (Iowa), 481; Gower v. Hager, 15 Cal., 208; Marine Bank v. Rushmore, 28 Ill., 468; Mohn v. Stoner, 14 Iowa, 115; Rudolph v. Wagner, 36 Ala., 678; Hayden v. Anderson, 17 Iowa, 158; Rosevelt v. N. Y. & E. R. R. Co., 45 Barb., 554; Webster v. Pierce, 35 Ill., 158; Kortright v. Cady, 23 Barb., 490.

      III. The tender was insufficient, and did not coyer the amount then due. “A tender, after the day mentioned, must include interest.”—Hamar v. Dimmick, 14 Ind., 105; Randolph v. Wagner, 36 Ala., 698.

    IV. It does appear, by the findings and proof, that Atkinson released and discharged the property, for the conveyance of which the said contract was made, and so* released and discharged any cause of action he might otherwise have had against the said John Allen.
    V. Atkinson’s receipt to Pinkham, the purchaser from Allen, with the knowledge and assent of Atkinson, was a release and discharge of Allen, from any claim Atkinson had against Allen, by reason of the contract.
    The case at bar is an instance of the absolute release, for a full consideration, of the- property sued for. This must necessarily be a release and discharge of all right of action for not conveying the same property.—Franklin v. Hart, 7 J. J. Marsh, 338; Howard v. Wilmington & Susq. R. Co., 1 Gill., 311; Sigsmun v. Morrow, 6 Iredell, 24; Selby v. Hutchinson, 4 Gilm., 319; DePeyster v. Palon, 3 Barb., Sup. Ct., 284; Raymond v. Bearnard, 12 Johns., 451.

    We ask the question, how the defendant, with any effect, could have tendered a deed, and offered to convey, after the plaintiff, for a consideration, had waived, and by waiver, released his right to a conveyance. We insist that such waiver was" not only a rescission, in part, but a satisfaction in pull, of the contract. In this case, there was no defect in title; and the plaintiff voluntarily put it out of his power to demand, or even to accept, of a conveyance.—Grove v. Donaldson, 15 Penn., St. R., 128; Parker & Co. v. O'Hern, 8 Md., 197; Haslack v. Mayor, 2 Dutch., 284; Harris v. Bradley, 9 Ind., 166; Wright v. Haskell, 45 Maine, 489; Haldeman v. Chambers, 19 Texas, 1; Attix v. Pelan, 5 Clarke, (Iowa), 336.

      YI. The finding of the Circuit Judge, of damages, was contrary to the facts found.
    If we are right in the conclusion, that the plaintiff, haying waived a right to a conveyance, released all right to damages, for non-conveyance, then we are right in this proposition.

      O'Brien J. Atkinson, for defendant in error.
    The finding of the Judge shows that the day after the agreement was made, Allen called on Atkinson, to make a deed of the land. He had no abstract of title, and Atkinson asked time to examine the title, offering Allen whatever money he wanted that day. A deed was partly drawn, but not completed, and Allen got angry and left. We insist it was Allen’s duty to tender a deed, and until he did so, Atkinson could not be put in default.—Guthrie v. Thompson, 1 Oregon, 353.

    The Judge finds, that August 20, 1866, Atkinson tendered the purchase money that was to be paid down, and notes and mortgage for the balance, and a deed ready for Allen’s signature. Allen refused to convey or receive the money. Atkinson then told him the money would remain in O’Brien J. Atkinson’s hands, ready for him, at any time he should choose to accept it. This was sufficient performance to entitle Atkinson to maintain his action.—Fuller v. Hubbard, 6 Cow., 13; Same case, 7 Cow; Connelly v. Pierce, 7 Wend., 129; Camp v. Morse, 5 Denio, 161.

    It was not necessary to keep the tender good. Upon its being made, there was a refusal, which constituted a breach of the contract, and the right of action was complete from that moment.
    Until a tender of the deed, and demand of the money, there can be no implied promise to pay interest.—Beardsly v. Horton, 3 Mich., 560. If the amount of the tender was not enough, it should have been refused, for that reason. And the deficiency makes no difference where a sum substantially that required, is tendered, and the refusal Í3 general.—Carman v. Pultz, 21 N. Y., 547; Hull v. Peters, 7 Barb., 331.

    The plaintiff in error insists that Atkinson waived his right to damages, by his arrangement with Pinkham. This depends upon the construction given to the receipt which he gave to Pinkham. It appears, when this was signed, a bill -for specific performance was pending. The suit was discontinued by stipulation with Allen’s solicitor, without prejudice. This fact, as well as the words of the receipt itself, shows that the intention was to waive a particular remedy, and pursue another.
    The question of waiver is always one of intent.—Fitch v. Woodruff, 29 Conn.; 2 Pars. Cont., 685, and note.

    Allen has no right to the agreement with Pinkham. It is a matter in which he has no legal interest. He cannot therefore use it as a defense. But even if permitted to use it, it proves no waiver. Even a decree against the complainant, upon a bill for specific performances, will not bar a suit at law for damages.—Walden v. Tyron, 11 Q. B., 292, Had the waiver been of performance generally, then there might be some force in the assignment of error. But specific performance has a well-defined meaning — and under the circumstances of the case cannot be misunderstood.
    The rule of damages is the difference between the market and contract price, fixing the market price at the time of the broach.—Hopkins v. Lee, 6 Wheat., 109, 110. A different rule has been held in N. Y., where the vendor acted in good faith.—Baldwin v. Munn, 2 Wend., 399; Conger v. Mason, 20 N. Y., 140. But even these cases do not go to the extent that where the defendant refuses, without excuse, to convey, he will not be liable for the actual damages And the decided weight of authority is, that even good faith will not affect the damages.—Sedgwick on Damages, 194; Newson v. Harris, Dudley’s (Geo. R.), 180; Warren v. Wheeler, 21 Me., 484; Hill v. Hobart, 16 Me., 164.

   Cooley, J.

The action between these parties in the Court below was by Atkinson against Allen, for breach of a contract, by which the latter undertook to convey to the former a certain parcel of land. It is not disputed that Allen had the title to the land at the time of the contract and the breach, and that he might have complied with his contract had he seen fit to do so. The principal questions in the case are, first, — Whether he was excused from performance by the acts of Atkinson, and, if not, then, second, — In what damages he is liable for refusal. The Court below held him not excused, and that the damages were to be measured by the value of the land at the time of the breach; and this holding, as to damages, was unquestionably correct under the authorities, unless the case is taken out of the general rule by the special circumstances which the record discloses.

These special circumstances are the following: The sale was for $2,000, one-half payable down, and balance in one and two years. No time was fixed by the contract within which it was to be performed. On the day after its date, Allen, the vendor, went into the office of Atkinson for the purpose of executing a deed in fulfillment of his contract. Some conversation there took place between the parties in regard to the title, which is differently stated by them in their evidence, but the result was that Atkinson declined to take a conveyance until he had made an examination of the title, and Allen got angry and went off. It appears that the record at this time showed a mortgage upon the land not discharged, and that the mortgagee, named therein, resided in another part of .the state. Within a month afterwards, Atkinson, having satisfied himself that the mortgage was actually paid, prepared the proper papers and tendered them to Allen for execution, at the same time tendering payment also of the one-half of the purchase money which was to be paid down. Allen refused at that time to perform the contract, and two or three months afterwards, sold and conveyed the land to one Pinkham for $2500, Atkinson having previously filed a bill against Allen for specific performance. Before Pinkham received his deed, however, Atkinson, at Pinkham’s request, made an arrangement with him, which was evidenced by a receipt in the following words: “Received of Geo. W. Pinkham $100, for which I waive my right to a specific performance of a contract dated July 20th, 1866, between myself and John Allen, and agree to look to John Allen personally for any damage resulting to me by reason of said contract. John Atkinson. Port Huron, November 30th, 1866.” And thereupon, the solicitor for Allen stipulated that Atkinson’s bill might be dismissed without prejudice, and it was dismissed accordingly, and the present suit instituted.

It is claimed on behalf of Allen that Atkinson waived his rights under the contract when he declined to make payment and receive the deed the day after the contract was entered into. This suggests the inquiry whether a vendee of lands, who has not stipulated for an abstract of title, or for a preliminary examination, is entitled to demand such an abstract, or at least to take time for such examination, before making payment.

The contract in the present case is in the following very concise form: “Memorandum of an agreement ipade the 20th day of July, 1866, between John Allen and John Atkinson, both of St. Clair County, witnesseth: That said John Allen has this clay sold to the said.John Atkinson all that piece or parcel of land contained within the enclosure, on the corner of Seventh and Pine streets, for which the said John Atkinson is to pay the sum of two thousand dollars; $1000 down, and $1000 in two equal annual payments, with interest at ten per cent per annum.” Nothing is said here about the title, but the parties evidently assume that it is unquestionable, and negotiate on that basis.

I think it well settled in this country, where title deeds are recorded and open to the inspection of all parties, that when one contracts to sell and convey lands and the contract is silent concerning the title, it is to be assumed that the title is good, and that it devolves upon the vendee, if he questions it, to show the defect. Such was the opinion expressed by this Court in Dwight v. Cutler, 3 Mich., 566, 576, and the cases of Breithaupt v. Thurmond, 3 Rich., 216, and Brown v. Bellows, 4 Pick., 179, there relied upon, fully sustain this' decision. But the vendee had an undoubted right to a good title, and to a deed with proper covenants; Dwight v. Cutler, ut supra, and cases cited; and he had a right also to insist that the title should be a marketable one, not open to reasonable objection.—Freetly v. Barnhart, 51 Penn. St., 279.

Now, although in this case it is to be assumed, in the absence of any showing, that the title was good, and Atkinson had no right to demand time for investigation, yet when he shows an apparent encumbrance of record; the aspect of the case is changed, and the most that the vendor can insist upon is, that he shall satisfy himself within a reasonable time whether the apparent encumbrance is a valid one or not. It would be out of all reason to insist that the vendee, at his peril, should take a title apparently encumbered, and that the vendor should have a right to demand the immediate performance of the contract by the vendee, when apparently his own deed would he insufficient to give the complete title he had agreed to convey. Nor do I think thirty days was an unreasonable time to take for this-purpose, when the mortgagee resided at a distance, and when it does not appear that the situation of the parties had in the meantime been changed, or that anything had occurred to render the contract less fair and equal than it was when entered into.

The tender of performance by the vendee was made on the twentieth day of August, 1866, and the money was placed in the hands of a third person, to be paid over to Allen, in case he afterwards concluded to take it. It is objected that the tender is not shown to have been kept good, and that the money was not brought into court; but this was not essential. A right of action accrued the moment there was a breach by refusal to convey on demand accompanied by the proper tender; and the acceptance or non-acceptance of the money by Allen afterwards would only affect the amount of damages. If he accepted it, Atkinson would be entitled to recover it back, but in truth he had no right to take it except upon the condition of a simultaneous delivery of a deed.

It was also objected that the tender was insufficient, because not including interest for the month that had elapsed after the making of the contract. No objection was taken on this ground at the time, and I think it untenable now. The contract did not call for interest, but was to be performed in a reasonable time. That reasonable time would have been immediately, had no defect appeared in the title; but under the circumstances the delay was warranted, and it was not within the contemplation of the parties that interest should be paid so long as the vendee ¡was not in default. The tender, in my opinion, was all that was required.

The remaining question is, whether the arrangement between Atkinson and Pinkham released Allen. Such was certainly not the intention of the parties, as is proved by the receipt given, and also by the stipulation for discontinuance. There was no accord and satisfaction in the case, and Allen was not in any way a party to the arrangement. It did not amount to an assent to the non-conveyance of the land to Atkinson, for Allen had already refused to convey, and had persisted in the refusal, notwithstanding the suit brought against him. The arrangement, in brief, was that Atkinson, who had a choice of two remedies, should pursue one instead of the other; and as Allen could have no voice in determining which should be chosen, and no right to insist that he should be pursued in the court of equity rather than the court of law, and, consequently, could not possibly be prejudiced by the arrangement, neither, on the other hand, has he any right to claim an advantage from it. It was an arrangement by which Pink-ham, acting solely on his own behalf, and from a regard to his own interest, relieved himself from a prospective lawsuit; and by which Atkinson made that same choice of remedies which he had an undoubted right to make, irrespective of the arrangement with Pinkham.

As Allen refused to perform when it wag in his power to do so, and without legal excuse, there can be no question, on the authorities, that the rule of damages adopted in the Court below was the correct one. If the vendor willfully refuses to perform his contract, he must place his vendee, as near as money can do so, in the same position in which he would have been if he had .obtained that for which he contracted.—Cannel v. McClean, 6 H. & J., 297; Hopkins v. Yowell, 5 Yerg., 305; Dustin v. Newcomer, 8 Ohio, 49; Trull v. Granger, 8 N. Y., 115; Engel v. Fitch, L. R., 3 Q. B., 314; same case in Exchequer Chamber, L. R., 4 Q. B., 659; Martin v. Wright, 21 Ga., 504; Cox v. Henry, 32 Penn. St., 18; Burr v. Todd, 41 Penn. St., 206; Foley v. McKeegan, 4 Iowa, 1; Pumpelly v. Phelps, 40 N. Y., 59.

I think the judgment of the Court below should be affirmed.

The other Justices concurred.


source: Caselaw Access Project

author: Campbell, Ch. J.

license: Public Domain

text:
    Storrs H. Moulton v. Hannah Mason, Administratrix of Charles Mason.

      Proof of seconda/)'y evidence. The refusal, after reasonable notice, to produce a document in the possession of the adverse party, and which the party demanding it is entitled to introduce in evidence, authorizes proof by secondary evidence; but it does not dispense with such proof as is attainable; nor allow the tenor of the instrument to he made out by anything less than satisfactory evidence of all that is essential.

      Documentary evidence: Refusal to produce on notice. The cases which hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards, do not authorize such exclusion when the document relates to the case of the party holding it. Such a rule would bo better calculated for the punishing of parties than for the eliciting of truth; and, if it were ever proper, there can be no reason for it now when parties are competent witnesses, and can be compelled to bring into court any paper in their hands which their adversaries have any right to prove.

      "Witnesses: ■ Examination of parties: Act No. 125 of 1861. It is questionable whether the statute, which, in cases prosecuted or defended by the representatives of a deceased person, declares that the opposite party shall not be admitted to testify in relation to matters which, if true, must have been equally wirhin the knowledge of such deceased person, has any application to written documents: but when the representatives of the deceased have the means of proving the document by independent evidence, the case is not within the statute.

      Heard July 12.

      Decided October 5.

    Error to Branch Circuit.
    This was an action of assumpsit, brought by Hannah Mason, as the administratrix of Charles Mason, in the Circuit Court for the County of Branch, against Storrs H. Moulton. The plaintiff declared upon the common counts, to which the defendant pleaded the general issue, and gaye notice of a set off; and by mutual consent the cause was referred to David Thompson, Esq., to examine and report thereon. The questions for review in this Court arise upon the rulings of the referee as to the admission and rejection of testimony; to which exceptions were taken, and, on argument before the Circuit Court, were overruled, and a judgment entered for the plaintiff, which judgment the defendant brings into this Court by writ of error.

      C. I. Walker, for plaintiff in error.
    The only questions that will be discussed upon the part of the plaintiff in error, involve the construction and the proper application of the statute of 1861, providing, that in a proceeding prosecuted or defended by a representative of the deceased person, the opposite party shall not be admitted to testify “in relation to matters which, if true, must have been equally within the knowledge of such deceased person.”—Laws of 1861, p. 169.

    This statute was under consideration by this Court in the case of Kimball v. Kimball, and it was there said that the terms employed mean substantially the same thing as the New York code, which provides that the party shall not be examined “in respect to any transactions had personally between the deceased person and the witness.”— 16 Mich., 217. ■

    The decisions in New York still further illustrate the limitations of this provision.—Williston v. Williston, 4 Barb., 635; Simmons v. Sisson, 26 N. Y., 706; Lobdell v. Lobdell, 36 N. Y., 333.; Franklin v. Pinkney, 2 Robt., 429.

    The plaintiff’s testimony tended to prove that some weeks before the death of the intestate, that he got of the defendant said inventory for the purpose of making a copy, and that he “made or caused to be made” such copy, and a paper purporting to be such copy was received in evidence against the objection of the defendant. The defendant was then asked the following questions in relation to said inventory, and a paper purporting to be a copy thereof:
    1st. “State whether this is a copy of an inventory made between you and Charles Mason, of any goods purchased by you of him ? ”
    2d. “If that were a copy of any inventory which you ever made yourself of any goods ?”
    3d. “Is that a copy of an inventory Avhich you ever assisted in making?”
    4th. “State whether you ever had in your possession any book containing an inventory of which that is a copy ?”
    To each of which questions objection was made, the objections were sustained and the testimony excluded upon the ground that it related to a matter which was equally within the knowledge of the deceased and defendant, and that the defendant was therefore not a competent witness. The question is, — Were those rulings correct?
    We think it entirely clear, in the light of the adjudications above referred to, that the referee erred in rejecting the testimony. The making of such paper purporting to be a copy was not a matter that took place directly between the decedent and the defendant, nor indeed does it appear that the testimony tended to show that the decedent himself ever saw said copy so called, or that he knew whether it was a' correct copy or not. He may simply have caused some third person to make the copy, without ever having examined, compared or even seen it. But if his personal knowledge upon that subject was ever so perfect, it was not a matter equally within the knowledge of both in the sense of this statute.
    The remaining assignments of error rest upon precisely the same principle, only the error is still more clear and there is no pretense that the facts called for were within the knowledge of the decedent.
    The defendant was asked the following questions: State whether you paid J. W. Wright, of Oswego, for Mr. Mason, any money at any time, and if so, when, and what amount? State whether you made any arrangement, with Mr. Meader,. before Mr. Mason’s death, whereby you agreed to pay Meader, for Mr. Mason $52.09, and have you, since that agreement, paid Meader that amount?
    And it was objected that the defendant was not a competent witness thereto, and the evidence was rejected. It needs no argument to show, especially in relation to the first of these questions, that the referee erred in his ruling.

      Shipman & Loveridge, for defendant in error.
    The ruling complained of was upon this question, asked the defendant, a witness in his own behalf: “ State whether this is a copy of an inventory made between you and Charles Mason, of any goods purchased by you of him ?”
    The other assignments of error are to questions directed to the same end, and intended to establish the same fact, viz: that the paper was not a true copy of the inventory.
    One objection only appears to them in the bill of exceptions; but if others exist, the ruling will not be reversed although the objection stated be not good, for if the questions were asked over again, all the objections could be made. The objections are: There is better-evidence of the fact, viz: the original inventory in the defendant’s possession.
    After failure to produce the original, he could not contradict the secondary evidence given of its contents.—Doe d. Thompson v. Hodgson, 12 Ad. & El., 135; Doe d.

      Higgs v. Cockell, 6 C. & P., 525; Bogart v. Brown, 3 Pick, 18.

    It was a matter equally within the knowledge of the deceased, Charles Mason.—Kimball v. Kimball, 16 Mich., 211.

    The question asked Moulton, — Whether he paid any money to Wright for Mason, was not proper, because — the finding by the Commissioners of the amount due Moulton 'from the deceased was final. — 2 O. L., § 2929. It was a matter equally within the knowledge of the deceased; or it was a voluntary payment by Moulton to Wright which could not be charged to Mason.
   Campbell, Ch. J.

Suit was brought by Mrs. Mason as administratrix of Charles Mason, deceased, among other things to recover the price or value of certain goods sold to Moulton by the deceased. Having introduced evidence tending to show the sale and delivery to Moulton of the property in question, and that Mason and Moulton examined and made an inventory of it, which was written in a book in Moulton’s handwriting, and taken into his possession, further proof was given on her behalf to the effect that Mason, three or four weeks before his death, called upon defendant and got from him the book containing the inventory to be copied; that he made or caused to be made for himself a copy of it, and that the book was returned to Moulton. Notice to •produce the original having been served upon Moulton, and he not producing it, an alleged copy was offered in evidence, and received against his objection.

When the defendant’s case was in progress, offers were made to prove by his testimony that the paper produced was not a copy of that inventory or of any inventory of any goods ever purchased by defendant of Mason, or of any inventory ever made by him at all, or which he ever assisted in making. And an offer was also made to show by his testimony when on the stand that he never had in his possession any book containing an inventory of which that was a copy. All of this testimony was ruled out. The Court also rejected his testimony, offered to show a payment made by him to one J. W. Wright, of Oswego, for Mason. Similar testimony was rejected, to show that an arrangement had been made with one Meader, before Mason’s death, whereby Moulton was to pay, and did pay, Meader for Mason a certain sum of money.

We are at a loss to discover any reason for the rejection of the two latter items. Evidence of payment is always admissible in defense of an action of asswnpsit, and. if money was paid to a third person for the deceased, further proof that the payment was authorized or ratified, or the money paid over to him, would put it on the same footing as if made to himself. ■ We cannot imagine on what ground it was held inadmissible.

The principal reason alleged for the exclusion of the other testimony was, that it came within the prohibition of the statute as relating to facts equally within the knowledge of defendant and the deceased. It was also insisted that by not producing the original of the inventory when demanded, he precluded himself from ■disputing the correctness of the copy.

The refusal, after reasonable notice, to produce a document in possession, which the adverse party is entitled to introduce in evidence, authorizes proof by secondary evidence. But it does not dispense with such proof as is attainable, and does not allow the tenor of the instrument to be made out by anything less than satisfactory evidence of all that is essential. There is no rule which prevents tbe contradiction of such secondary evidence, or which will allow a document to be conclusively proved by anything that a party may see fit to affirm to be a copy. Dispensing with primary evidence only changes the degree of evidence required, but in no way allows a case to be made out without proof, or prevents counter proof. The rule enforced in the present case is equivalent to excluding all testimony for the defense on a principal issue. This would be an arbitrary and monstrous doctrine.

It seems to have been rested on the supposed rule that a party who refuses when requested to produce a document in his possession, shall not afterwards be allowed to produce it to contradict the secondary proofs of his adversary. That, however, was not attempted here. There was no admission that the paper in question was in Moulton’s possession, and the questions put to him on the defense did not call for its production. They were put in such a way as to draw out parol evidence as readily as written.

But we do not perceive any very sound reason why the document itself should be excluded, if he had it. There are, indeed, some cases, which were cited on the argument, which seem to hold that a party declining to produce a document when called for under a proper notice, is estopped from producing it afterwards. There is no authority for such exclusion where it relates to his own case, even where not produced when called for by his adversary.—2 Phil. Ev. (Edward’s Ed.), 535. But this doctrine of estoppel has not found its way very generally into the text-books, and cannot be said to be among the old or established principles of the, law. It is not a rule calculated to further the eliciting of the truth. It is simply an attempt to punish one party by allowing his adversary to recover what does not belong to him, or to defend unjustly against a proper claim. Any rule, which rejects cértain proof for uncertain, deserves very little respect.

If such a rule could ever have been proper, there can be no reason for it now, when parties are competent witnesses, and can be compelled by subpoena duces team to bring into court any paper in their hands which their adversaries have a right to inspect, and prove. The inventory in the present case appears to have been such a document, relating to the case of the plaintiff below, and measuring or bearing upon the amount of her claim. If Moulton had it in possession, such a subpoena would have reached it. If not in his possession, a sufficient search and diligence would have been required to justify secondary proof.

The remaining questions all relate to the propriety of excluding the testimony because equally within the knowledge of the decedent during his life. To see the bearing of the objection, it must be considered in connection with the facts as elicited. The plaintiff below, suing as administratrix upon a claim of the decedent against defendant, had not found it necessary to call defendant to prove anything. The whole case had been made out by witnesses. There was proof tending to show the sale of the property out of which the claim arose, — proof that the two parties made an inventory which was recorded in defendant’s handwriting,— proof that Mason obtained it of defendant some weeks before his death, and copied it or had it copied, and that he told defendant wh^ he wanted it, and proof identifying that copy. It appears from this showing that the facts material to be proved, while within the knowledge of Mason and defendant, were also within -the knowledge of others, and provable by them. It does not appear that the copying of the inventory took place in the presence of Mason and defendant, or of either of them. The whole controversy, as it appears on the record, is concerning the correctness of the copying of a written document.

It is certainly questionable whether the statute excluding testimony in relation to matters equally within the knowledge of the deceased and the witness, has any reference to written documents, which are designed to supersede evidence resting in memory merely and capable of perversion. But when, as here, the representatives of the deceased have the means of proving the existence and contents of the document, and take it upon themselves to do so by independent evidence, the case is not within the mischief of the law, and is not covered by it. Proof of the correctness of a copy is still more remote, and in this case appears to relate to a matter which was not jointly managed, and on which it is quite likely Mason, if living, would not have been able to testify. Any one who had compared the papers when made, or subsequently, could give evidence on this point. It is an independent fact, quite outside of the original dealings which may have given occasion for the execution of the paper, and not dispensing with proof of that execution. The copy might be made after the death of both parties, or without the knowledge of either when living. And their knowledge or ignorance could not affect its correctness.

The rulings were erroneous, and the judgment should be reversed with costs, and a new trial granted.

The other Justices concurred.


author: Christiancy, J.

text:
    The People ex rel. Francis Gilman v. The Judge of the Wayne Circuit Court.

      Practice in the Circuit Court: Ejectment: Statutory new trials. A party, against whom a judgment in ejectment has been rendered, will be entitled to a new trial on the payment of the costs — under § 4589 Comp. Laws — if there has been but one previous judgment legally obtained and unreversed.

      Heard October 4.

      Decided October 5.

      Application for mandamus : '

    By Francis Gilman, to compel the Judge of the Circuit Court for the County of Wayne to vacate an order for a new trial granted by him, in a case in which one Hyacinth Riopelle was plaintiff, and the relator defendant. The action was ejectment. It had been tried twice. On the first trial Riopelle obtained a verdict and judgment. This was brought by Gilman, by writ of error, to 'this Court, where the judgment was reversed, and a new trial ordered. On the second trial verdict and judgment passed for Gilman. Riopelle then made application under the provisions of § 4589 of the Compiled Laws, on payment of costs, for an order vacating the judgment and granting a new trial. This order having been granted by the Circuit Court, Gilman now applies to this Court for a mandamus to vacate the order for a new trial.

      H. M. Cheever, for relator, citing Bellinger v. Martindale, 8 How. Pr., 113; Chat. Co. Bank v. White, 23 N. Y., 349.

      C. I. Walker, contra.

   Christiancy, J.

The intention of the statute was, we think, to give the new trial after a judgment regularly and rightfully obtained. The statute was not needed to get rid of a judgment wrongfully or illegally obtained. If it has been wrongfully obtained, as by error of law or fact, it was not a legal and valid judgment, but subject to be reversed; and being reversed, the case stands the same as if no such judgment had ever been rendered.

The new trial in question in this case is the first new trial under this section.

The new trial granted by this Court was not one of the new trials provided for by this section.

The time does not begin to run till after tbe first judgment regularly obtained and unreversed.

The mandamus must be denied.

Tbe other Justices concurred.


text:
    Henry Hammond v. Catherine Hannin.

      Evidence: Ratification of land contract: Authority of agent. The authority of an agent to execute a written contract for the purchase of lands, may he shown hy an oral ratification; and the acts of the principal, from which such ratification may he inferred, are competent evidence for that purpose.

      Evidence: Payment of taxes. The payment of taxes may he proved hy parol. Although it is true that the collecting officer’s receipt is an official document, and may he used as primary evidence, this does not preclude other proof.

      Preach of contract to convey land: Measure of damages. Where a vendor in a contract for the sale of land acts in had faith, the proper measure of damages is the value of the land at the time of the breach; hut where the contract was made in good faith, and the vendor is unahle to perform it, the measure of damages will he the consideration money and interest, with, perhaps, the costs • of investigating the title.

      Heard July 9.

      Decided October 6.

    Error to Van Burén Circuit.
    This was an action of assumpsit brought by Catherine Hannin in tbe Circuit Court for tbe County of Van Burén, against Henry Hammond, to recover damages for tbe breach of a contract to sell and convey to tbe plaintiff a parcel of land. Tbe plaintiff averred in her declaration that she bad sustained special damages by reason of the expenditure of large sums of money on tbe land for improvements and payment of taxes, and tbe loss of tbe profits upon tbe sale of a portion of tbe premises. Tbe defendant pleaded tbe general issue. Tbe facts alleged by tbe defendant, by which be was prevented from performing tbe contract, and tbe rulings and charge to tbe jury of tbe Circuit Judge, on tbe trial, on which tbe questions brought into this Court for review arise, are stated in tbe opinion of tbe Court.

      Newton Foster and M. J. Smiley, for plaintiff in error.
    1. It was error to admit oral evidence to prove an agency to purchase lands hy contract.

      2. It was error to admit parol evidence to prove the amount paid for taxes on said premises when the tax receipts were in existence, without accounting for their absence, a. Tax receipts are required by law to be given by the township treasurer on payment of the taxes, and are original evidence.—Comp. Laws, § 843; Johnstone v. Scott, 11 Mich., 232. 1. The giving a receipt by the township treasurer is an official act.—Johnstone v. Scott, 11 Mich., 232. c. Parol evidence cannot be substituted for them to prove the amount paid unless their loss be first proved.— 1 Greenl. on Ev., § 84; Harris v. Whitcombe, 4 Gray, 433.

    3. It was error not to allow the defendant, Hammond, to testify as the price for' which said land was sold at auction sale as evidence tending to show its value, a. When the auctioneer knocked down the property, the terms of the contract were fixed.—1 Par. on Cont. 496. b. In a sale of land at auction, the consideration cannot be changed from that at which it was struck off. c. Hammond being present at the sale and hearing the bids, and knowing when the auctioneer struck off the land, would be competent to testify as to the highest amount bid. cl. Evidence of what the property sold at auction is admissible as having a tendency to prove value.—Smith v. Mitchell, 12 Mich., 180; Campbell v. Woodworth, 20 N. Y., 499.

    4. There was error in not admitting the record of the deed given by the guardian of John M. Gordon to the vendor of said land at said auction sale to show the consideration for which said land sold, for the purpose of proving the value of said land. a. The consideration stated and acknowledged in a deed is presumed to be the true value agreed to be paid.—2 Washb. on R. Propt., 2d Ed., (619) 658; 4 Kent, (465); Amden v. Manchester, 40 Barb, b. A deed is the final consummation of the transaction, and embodies the agreement of the parties, hence the best evidence. c. The deed was duly acknowledged, and the truth of its recitals and its validity are presumed.—1 Greenl. Ev. § 38; Dewey v. Dewey, 1 Met., 349. d. For the purpose for which this record ivas offered it Avas immaterial Avhether the court had jurisdiction or not so long as it appeared that there had been a regular sale.
    5. It was error to refuse to instruct the jury that unless the defendant acted in bad faith in refusing to give a deed of said land according to the terms of the contract, the measure of damages is the money paid and the interest thereon.—3 Par. on Cont., 228; Sedgw. on Dams., 2d Ed., 202; Flureau v. Thornhill, 2 W. Bla., 1078; Walker v. Moore, 10 B. & C., 416; Worthington v. Warrington, 8 Man. G. & S., 134; Conger v. Weaver, 20 N. Y., 140; Munn v. Baldwin, 2 Wend., 399; Peters v. McKeon, 4 Denio, 546; Fletcher v. Button, 6 Barb., 646; Key v. Key, 3 Head (Tenn.), 448; Sweem v. Steele, 5 Iowa, 352; Stewart v. Noble, 1 Greene (Iowa), 126; Thompson’s v. Guthrie’s, 9 Leigh, 101; Combs v. Tarlton, 2 Dana, 465; Allen v. Anderson, 2 Bibb, 415; 2 Blackf., 147. a. That on an executory contract for the sale of land, where there is no fraud on the • part of the vendor, if the sale falls through in consequence of a defect of title, the measure of damages is substantially the same as it is in the case of an executed sale on covenants for seisin and for quiet enjoyment.— Sedgw. on Dams., 2d Ed., 204; Munn v. Baldwin, 2 Wend., 399; Peters v. McKeon, 4 Denio, 546; Allen v. Anderson, 2 Bibb, 415; Fletcher v. Button, 6 Barb., 646; 2 Blackf., 147; Sweem v. Steele, 5 Iowa, 352; Stewart v. Noble, 1 Greene (Iowa), 26. b. That on an executed contract of sale of lands, if the title fails, the measure of damages is the consideration money and interest.—4 Kent, 475, et. seq; Staats v. Ten Eyck, 3 Caines, 111; Smith v. Strong, 14 Pick., 128; Pitcher v. Livingston, 4 Johns., 1; Bennet v. Jenkins, 13 Johns., 50; Sumner v. Williams, 8 Mass., 162; Byrnes v. Rich, 5 Gray, 518; 1 Sugd. on Vend., 41 Penn. St., 206; 34 Penn. St., 418; Ch. on Cont. 278; Hall v. Delaplaine, 5 Wis., 206; Lester v. French, 6 Wis., 580.

    In this case the Circuit Judge charged the jury that the question of bad faith was not in issue, therefore, it must be conceded that the defendant, Hammond, acted in good faith, and there was no attempt on his part to commit a fraud upon the plaintiff. It was a mutual mistake of each acting innocently, and it may be justly said that it was the duty of the purchaser to examine the title, and find out the authority of the vendor to sell them. One should not be liable to the other for their mutual fault, neglect, or mistake.

      T. H. Stephenson and H. F. Severens, for defendant in error.
    The statute of frauds only requires that the contract for the sale shall be executed by the vendor or some person by him authorized in writing.—§ 3179, Comp. L. And it is entirely settled that a written authority is not necessary where a seal is not necessary to the validity of an instrument executed under the authorization.—Sweetzer v. Mead, 5 Mich., 107; Worrall v. Munn, 1 Seld., 229; Despatch Line v. Bellamy Man. Co., 12 N. H., 205, 234-7; Hunter v. Parker, 7 M. & W., 322.

    It is next assigned as error that the witness of the plaintiff was allowed to answer the question, what amount taxes she paid, “as a charge” against defendant. The objection in the Court below was: 1st, that it was “ immaterial,”, and 2d, that the proof offered was “not the best evidence.” It does not appear that the proof was offered specifically to establish a “charge” against defendant. But if that is to be inferred, the objection should have pointed out the ground on which it was founded, and not have left the Court and opposing counsel to grope after the reasons for it.—Camden v. Doremus, 3 How., U. S., 515; Jackson v. Hobby, 20 Johns., 357, 362-3; Elwood v. Deifendorf, 5 Barb., 398; Owen v. Frink, 24 Cal., 171; Leet v. Wilson, 24 Cal., 398; Mumford v. Thomas, 10 Ind., 161; Aurora v. Cobb, 21 Ind., 492; Dewey v. The Northwestern Uni’ty, 16 Ind., 220; White v. Chadbourne, 41 Me., 149.

    The objection, that the proof offered was not the best evidence, has no force. The tax receipt is no better evidence than the testimony of the witness.—Dewitt v. Crocker, 8 Greenl., 239; 1 Greenl. Evidence, § 90.

    It is also claimed that there was error in permitting the plaintiff to show that she had contracted to sell certain lands included in her purchase. It will be seen that the Court admitted the testimony, for the single purpose of showing that plaintiff had ratified the contract, executed in her behalf by Bartly Hannin, as her agent. And it was admitted because the defendant had objected that the execution of the contract was not shown to be authorized by her.
    The only remaining, but, indeed, the vital question in the case, is, — What is the measure of damages in the case of .a breach by the vendor of an executory contract for the sale of real estate ? As the record discloses, there was no defense to the action, and the case was confessedly little more than an inquest of damages, the defendant insisting throughout that the plaintiff could recover only the amount of the consideration and interest.
    The early English case of Flureau v. Thornhill, 2 W. Black., 1078, held that the measure of damages in such cases was the consideration and interest from the time of payment. Scarcely a decided case in the reports appears more unsatisfactory in the manner of decision, and it is not surprising that the English courts, though they profess themselves bound by it, have sharply criticised the case and have narrowed the domain of its authority to bounds so narrow that the courts there almost always, upon some pretext, find themselves able to go around it.
    Its authority was deeply trenched upon in the case of Hopkins v. Grazebrook, 6 B. & C., 31. In Simons v. Patchett, 7 El. & Bl., 572, Lord Campbell pronounces the rule of Flureau v. Thornhill anomalous. And finally, after running the gauntlet in a score of cases where the Judges fritter and explain it away, it meets, in the latest reported case upon the subject in England, the most pointed condemnation and almost open rebellion, in Engel v. Fitch, Law Rep., 3 Q. B., 314—4 Q. B., 659.

    Upon the whole, it appears that the only reason that is invoked in support of the limited authority of Flureau v. Thornhill is the unexpected difficulty which often arises from the complicated condition of titles to real estate in that country, a reason which does not exist here.
    Some courts in this country have followed Flureau v. Thornhill, generally without examining the basis of the decision, but the doctrine has been constantly losing ground, and has been repudiated by the Supreme Court of the United States, and by very many of the State courts.—Hopkins v. Lee, 6 Wheat., 109; Wells v. Abernethy, 5 Conn., 222; Barbour v. Nichols, 3 R. 1., 187; Newson v. Harris, Dudley, Ga., 180; Bryant v. Hambrick, 9 Ga., 133; McKee v. Brandon, 2 Scam., 339; Gale v. Dean, 20 Ill., 320; Nichols v. Freeman, 11 Ired., 99; Whiteside v. Jennings, 19 Ala., 784; Cammell v. McLean, 6 Har. & Johns., 297; Warren v. Wheeler, 21 Me., 484; Boardman v. Keeler, 21

      Vt., 77; Loomis v. Wadhams, 8 Gray, 557. To which add 1 Scam., 310; 21 Ga., 504; 9 Ala., 252; 9 Gill, 260; 4 Md., 508; 5 Dutch., 112. And upon the same side is to be ranked the high authority of Mr. Sedgwick.—Sedgwick on Damages, 3d ed., 185, n. x. 187, 188, 204, 210.

    The notion of measuring damages for a breach of contract, by the good faith of the vendor, or the accidents which surround him, has nothing in it of justice to the vendee, and shifts all the risk of the vendor’s being able to perform, from the party upon whom by every principle of justice it belongs, and places it upon the party who is ready and willing to perform his contract. The absurdity and injustice of the doctrine is shown by the cases in those courts where it is adopted, which hold that in an action by the vendor against the vendee, the measure of damages is the difference between the value of the land and the price agreed to be given.
    Upon the facts in the case at bar it is within the exceptions which have been established in the rule of Flureau v. Thornhill, by the later cases in England, and in the States where the English rule is followed. See especially Hopkins v. Grazebrook, 6 B. & Q., 31; Robinson v. Harman, 1 Exch., 850; Engel v. Fitch, Law Rep., 3 Q. B., 314; Brinkerhoff v. Phelps, 43 Barb., 469; Sweem v. Steele, 5 La., 352.

    Whatever weight the cases which hold the confessedly anomalous rule may have in the tribunals that are so unfortunate as to be bound by them, this Court has declared in Caldwell v. Gale, 11 Mich., 67, that it does not hold itself bound by adjudications outside of the State, unless they appear to be warranted by the fundamental principles of the common law.
    It would seem that this Court has already gone far toward deciding this point, in the cases upon the rule of measuring damages hitherto decided by it. It is plainly deducible from the cases in this Court, that the principle which the Court has invariably maintained and endeavored to establish as uniformly applicable to those cases, where the damages were capable of measurement, is that of awarding to the injured party compensation equivalent to the actual damages which he has sustained.—Allison v. Chandler, 11 Mich., 542; Burrill v. Saginaw Co., 14 Mich., 42; Warren v. Cole, 15 Mich., 265; Jaquith v. Hudson, 5 Mich., 123.

   Cooley, J.

The material facts in this case are as follows: On September 10, 1864, Hammond contracted to sell to Hannin an eighty acre lot in the County of Yan Burén, for the sum of five hundred dollars, of which one hundred and twenty dollars were to be paid down, and the balance in subsequent installments. The contract was in writing, and was signed and sealed on behalf of Hannin, by Bartly Hannin, her husband, who had oral authority for the purpose. Hannin took possession and cut and sold off considerable timber, paid taxes for two years, and gave contracts to two persons for the sale to them of different parcels of the premises.

The legal title to the land appears to have been, at the time the contract was entered into, in one John M. Gordon, an insane person, of whom one Mickle was committee. T. W. Mizner, Esq., of Detroit, was acting as agent for Mickle, and as such sold the lands to Hammond, who appears to have purchased in good faith, and in the belief that he was to obtain a good title. The conveyance, however, was not yet made. Hannin paid Hammond the whole amount of the purchase money agreed to be paid by her, except one hundred and three dollars, and on September 14, 1866, tendered payment of this sum and demanded title; but Hammond having at that time discovered that Mickle had no authority, as committee, to make sale of lands in Michigan, declined to execute a deed on this ground, and Hannin then brought action against him to recover damages for breach of his contract to convey.

The main question which has been discussed upon this record, regards the proper measure of damages; but there are some questions of minor importance which may properly be considered first. The defendant objected to oral proofs of the authority by the plaintiff to her husband to sign the contract on her behalf, but the objection was overruled. If this evidence had been all that appeared to connect the plaintiff with the contract, I should not be satisfied of the correctness of this ruling. Our statute of frauds requires the authority of the agent acting for another in the sale of lands to be in writing (Comp. L., $8180); and though, perhaps a strict construction of the section would confine its operation to the agent of the vendor alone, I am inclined to think that by necessary implication, the authority of the agent of the vendee is to be evidenced in the same manner. — Bro. Slat. Ft., § 268. It was not essential, however, that the contract should be under seal, and an oral ratification of it afterwards was sufficient.—Maclean v. Dunn, 4 Bing., 722; Hunter v. Parker, 7 M. & W., 322; Worrall v. Munn, 5 N. Y., 229; Bank of Metropolis v. Guttschlick, 14 Pet., 29. The subsequent ratification was so abundantly proved in the present case that I am inclined to treat this error of the Court — if such it was — as immaterial. The subsequent payment by the plaintiff of nearly all the purchase price, and her contracts for the sale of portions of the land, were undisputed, and were such unequivocal acts of ratification as to put that fact beyond controversy. We ought not, I think, to reverse a judgment for an error which could not possibly have been productive of injury.

The second error complained of is • that the plaintiff was allowed to prove by parol that she had paid certain taxes upon the premises, against' the objection of the defendant, that the receipts for these payments were the better evidence. We think, however, that the. fact of payment of money may always be proved by parol, whether a receipt was taken for it at the time or not. It is true it has been held that if a receipt is given it is an official document which may be used as primary evidence; Johnstone v. Scott, 11 Mich., 232; but this does not preclude other proof. On the contrary, the receipt itself, if put in evidence, would be open to contradiction or explanation, by the evidence of persons having personal knowledge of the facts; and the parol evidence can therefore in no sense be regarded as secondary. The receipt,. if proved, might save the necessity for calling witnesses, but it could not render them incompetent.

An objection which was taken to evidence by the plaintiff to show sales of the land made by herself, is equally untenable. The Court received this evidence for the sole purpose of showing a ratification by the plaintiff of the purchase made in her name by her husband. For this purpose it was unobjectionable.

Another objection was taken to a ruling by the Court excluding evidence of a deed given upon an auction sale of the same lands made afterwards by the guardian of the owner under an order of the Probate Court. The evidence was offered in order to show that the value of the land, as determined by the public sale, was much less than that testified to by the plaintiff’s witnesses, but it appears that the defendant was afterwards allowed to put in evidence the files and records of the Probate Court to show the same facts proposed to be shown by the guardian’s deed, and the error, if any, was thereby cured.

Upon the principal question, the Court below ruled that the plaintiff was entitled to recover "compensation for the loss and injury sustained by the plaintiff in consequence of defendant’s breach of contract, and that in estimating the damages upon this principle of compensation, the jury had the entire range from the amount that was paid on the contract, to the highest value of the land that was proven at the time of the breach, less the amount unpaid upon the same.” In other words, that the plaintiff was entitled to recover the profits which she would have made by the good bargain she had lost, if such it proved to be.

There is po doubt that the instruction given by the Court is correct as a general rule. Where a breach of contract occurs, the law aims to make compensation adequate to the real injury sustained, and to place the injured party, so far as money can do it, in the same position he would have occupied if the contract had been fulfilled.—Sedg. on Dams, 174; Robinson v. Harman, 1 Exch., 855; Lock v. Furze, L. R., 1 C. P., 441; Hill v. Hobart, 16 Me., 164; Lewis v. Lee, 15 Ind., 499.

And where the carrying out of the contract would have given one of the contracting parties the enjoyment of a particular thing, and he has lost it, the damages he will be entitled to, are the value of that which he has lost.—Ibid., and see Engel v. Fitch., Law R., 3 Q. B., 314.

To this general rule, which is so entirely undisputed as to make further citation of authorities superfluous, an exception was introduced in the case of contracts for the sale of land, by the decision in Flureau v. Thornhill, 2 Wm. Bl., 1078. That case is not so fully stated nor so completely reasoned as would be desirable,, but though often criticised on this account, and sometimes questioned, it has stood the test to the present time, and is the law of England at this day. “ Upon a contract for purchase,” said Chief Justice De Grey, “if the title proves bad, and the vendor is, without fraud, incapable of making a good one, I do not think that the purchaser can be entitled to any damages for the intended goodness of the bargain which he supposes he has lost.” And Blackstone, J., added, “These contracts are merely upon conditions, frequently expressed but always implied, that the vendor has a good title. If he has not, the return of the deposit with interest and costs, is all that can be expected.”

Upon this exception to the general rule, subsequent cases have engrafted some other exceptions. The leading one of these cases is Hopkins v. Grazebrook; 6 B. & C., 31. In that case it appeared that Hill & Co. had contracted to sell certain premises to one Harwood, and Harwood had contracted to sell to the defendant. A difficulty had sprung up between Hill & Co. and Harwood, but defendant disregarding this fact, and assuming that the difficulty would be arranged and the contract with himself performed, put the premises up at auction, and sold them to the plaintiff. The difficulties, however, were not arranged, and he was sued for breach of his contract. Abbott, Ch. J., said “the defendant should not have taken such a step without ascertaining that he would be in a situation to offer some title j and having entered into a contract to sell without the power to confer even the shadow of a title, I think he must be responsible for the damage sustained by a breach of his contract.”

In Lock v. Furze, L. R., 1 C. B., 441, the defendant, who had a right to grant leases in possession only, made a contract to give one in reversion, and it was held that the plaintiff was entitled to recover for a breach of this contract damages measured by the value of the lease bargained for.

In Engel v. Fitch, L. R., 3 Q. B., 314, the defendants, being mortgagees of a lease, sold it to the plaintiff, undertaking to give possession.' The mortgagor refused to surrender possession, and the defendants, though entitled to put him out by ejectment, declined to exercise that right. The Court hold the plaintiff entitled to recover full damages, and the Exchequer chamber afterwards affirmed the judgment.—L. R., 4 Q. B., 659.

In Bush v. Cole, 28 N. Y., 261, auctioneers, having authority to sell at not less than $2,800, sold to the plaintiff at $2,250. The Court was of opinion that although their principal was not bound by the contract of sale, the auctioneers were, and that the measure of damages was the value of that which the contract, if performed, would have assured to the vendee.

Pumpelly v. Phelps, 40 N. Y., 59, was a case where a trustee, having power to sell on the written consent of the cestui que trust, contracted in his own name without such consent. The cestui que trust, refusing to affirm the sale, the purchaser was held entitled to full damages.

The principle underlying these cases is, that if a party enters into a contract to sell, knowing that he cannot make a title, he is remitted to his general liability, and the exception introduced by Flureau v. Thornhill does not apply. So if a person undertakes that a third party shall convey, and is unable to fulfill his contract, the authorities are that he shall pay full damages. Such contracts are speculative in character, and the party giving them understands the risk he assumes when the covenant is entered into.—Dyer v. Dorsey, 1 Gill & J., 440; Pinkston v. Huie, 9 Ala., 252; Gibbs v. Jemison, 12 Ala., 820; Gale v. Dean, 20 Ill., 320.

There are also numerous cases which decide that if the vendor acts in bad faith, — as, if having title he refuses to convey, or disable himself from conveying, — the proper measure of damages is the value of the land at the time of the breach; the rule in such case being the same in relation to real as to personal property.—McConnell’s heirs v. Dunlap’s devisees, Hardin, 41; Gerault v. Anderson, 2 Bibb., 543; Davis v. Lewis, 4 Bibb., 456; Driggs v. Dwight, 17 Wend., 71; Dustin v. Newcomer, 8 Ohio, 49; Adams v. M’Millan, 7 Port., 73; Trull v. Granger, 8 N. Y., 115; Martin v. Wright, 21 Geo., 504; Cox v. Henry, 32 Penn. St., 18; Burr v. Todd, 41 Penn. St., 206. And the cases before referred to in which a party undertook to sell that which he did not own, and knew he could not control, may also, where the other party is not informed of the defect, be considered as involving a degree of bad faith, and have generally been so regarded by the courts.

But, on the other hand, if the contract of sale was made in good faith, and the vendor for any reason is unable to perform it, and is guilty of no fraud, the clear weight of authority is, that the vendee is limited in his recovery to the consideration money and interest, with perhaps, in addition, the costs of investigating the title.— Walker v. Moore, 10 B. & C., 416; Sikes v. Wild, 1 B. & S., 587; Same case, 4 B. & S., 421; Baldwin v. Munn, 2 Wend., 399; Peters v. McKeon, 4 Denio, 546; Conger v. Weaver, 20 N. Y., 140; Allen v. Anderson, 2 Bibb., 415; Goff v. Hawks, 5 J. J. Marsh, 341; Combs v. Tarlton’s Admr., 2 Dana, 464; Seamore v. Harlan’s heirs, 3 Dana, 410; Herndon v. Venable, 7 Dana, 371; Hall v. Delaplaine, 5 Wis., 206; Foley v. McKeegan, 4 Iowa, 1; Sweem v. Steele, 5 Iowa, 352; Blackwell v. Lawrence Co., 2 Blackf., 143; Thompson v. Guthrie, 9 Leigh, 101; Loomis v. Wadhams, 8 Gray, 557; Dunnica v. Sharp, 7 Mo., 71; McClowry v. Croghan, 31 Penn. St., 22; Dumars v. Miller, 34 Penn. St., 319; Hertzog v. Hertzog’s Admr., Ibid., 418; McNair v. Compton, 35 Penn. St., 23; Saulters v. Victory, 35 Vt., 351.

There are some cases which disregard the exception introduced by Flureau v. Thornhill, and which, treating the question of good or bad faith in the vendor as an unimportant circumstance, hold that the measure of damages on breach of a contract to convey lands should be the same as on breach of a contract for a sale of personalty. It is remarkable that, though this general subject has been very fully discussed in the English cases, and in many of the American cases referred to, the cases opposed to them appear generally to have entirely overlooked that discussion, and are evidently decided on first impression and without that investigation and reflection which so important a subject usually receives. The cases of Hopkins v. Lee, 6 Wheat., 109; Wells v. Abernethy, 5 Conn., 222; Buckmaster v. Grundy, 1 Scam., 310; McKee v. Brandon, 2 Scam., 339; Gale v. Dean, 20 Ill., 320; Cannell v. M’Clean, 6 H. & J., 297; Bryant v. Hambrick, 9 Geo., 133; Whiteside v. Jennings, 19 Ala., 784; Hill v. Hobart, 16 Me., 164; Warren v. Wheeler, 21 Me., 484; Hopkins v. Yowell, 5 Yerg., 305; Barbour v. Nichols, 3 R. I., 187; Nichols v. Freeman, 11 Ired., 99, are here referred to, and the weight of authority opposed to them is so overwhelming, and rests upon decisions so fully and so carefully considered, that even those who are dissatisfied with the doctrine declare the 'principle too firmly settled to be disturbed.—See Engel v. Fitch, L. R., 3 Q. B., 314; Sedg. on Dams,, 3d Ed., 188, marg. note

One very strong reason for limiting the recovery to the consideration money and interest in cases free from bad faith is, that the measure of damages is thus made to conform to the rule where the party assumes to convey land which he does not-own, and an action is brought against him on the covenants of title, contained in his deed. This reason is made specially prominent in many of the cases, and it cannot be denied that it is an anomaly if the vendee is restricted to the recovery of one sum, when an ineffectual deed is given, but allowed to recover a larger compensation in case the vendor, when he discovers the defect in his title, has the manliness to inform the vendee of the fact, and to decline to execute worthless papers. Had Hammond executed and delivered a deed when it was called for, the present controversy could not have arisen; and his failure to do so, which worked no additional wrong to the vendee, and was all that he could do consistent with good faith and honorable conduct, is the only ground upon which the plaintiff can claim to retain the large damages for the loss of her bargain, which were awarded her in the present case. So long as the rule stands which thus limits the damages in suits upon the covenants of title, so long ought we, also, I think, to adhere to the decisions which restrict the recovery, as above stated, in actions upon contracts to convey.

It remains to inquire whether the vendee in the present case is entitled, under the decisions, to recover damages for the loss of her bargain, either on the ground that the vendor assumed to sell what he knew he did not own, or that he has acted in bad faith. The vendor’s good faith in the whole transaction was fully conceded on the trial, and was assumed by the Circuit Judge in his rulings. And the instructions the Judge gave are not based on any supposition that the vendor had knowingly bargained to sell what he did not own. The contrary is clearly inferable from the evidence. It is true the vendor understood that he had not yet obtained the legal title, but he is assumed to have supposed he had the equitable title, and a right to compel the conveyance of a legal title; and the contract was, therefore, no more of a speculative character than if he had supposed the legal title to have been already vested in him. The general principle does not depend on whether the vendor’s supposed title was a legal one or not.—See Pounsett v. Fuller, 17 C. B., 660. When, therefore, the Circuit Judge laid down a general rule which made the belief or good faith of the defendant unimportant, and which would give the vendee in every case a compensation for the loss of Ms bargain, where for any reason the vendor-fails to perform, I think he erred, and that the judgment should be reversed and a new trial ordered.

The other Justices concurred.