Hartzell v. Crumb

• Citation: 90 Mo. 629,3 S.W. 59
• Parties: HARTZELL and others v. CRUMB.
• Decision Date: 31 January 1887
• Court: United States State Supreme Court of Missouri

3 S.W. 59

90 Mo. 629

HARTZELL and others v. CRUMB.

Supreme Court of Missouri.

January 31, 1887.

1. VENDOR AND VENDEE — REFUSAL TO CONVEY — MEASURE OF DAMAGES.

Where one who has agreed to sell land, and make a warranty deed, refuses to perform his contract, the measure of damages in a suit by the vendee (who has not paid the purchase money) to recover damages for the breach is the difference between the contract price and the value of the property at the date of the breach; and it is immaterial that the vendor in good faith refused to convey because he could not make a warranty deed, vendee being willing to accept such title as he could make. In such case the date of the breach is the time when vendor put it out of his power to perform his contract by conveying the property to another, unless he previously gave direct notice to vendee that he would not convey to him.

2. PRINCIPAL AND AGENT — CONTRACT SIGNED BY AGENT — PAROL EVIDENCE.

A contract not under seal for the sale of land being signed by one as agent, but the terms of the instrument leaving it in doubt whether the principal is bound or the agent only, parol evidence is admissible to charge the principal.

Appeal from circuit court, Cape Girardeau county.

Dennis & Smith, for respondent. R. H. Whitelaw, for appellant.

BLACK, J.

Plaintiffs, who are partners under the name of Hartzell & Bros., brought this suit to recover damages for a breach of the following contract:

"Received of Hartzell & Brother one hundred dollars as earnest money on purchase of 722 acres, leaving a balance of 1,400 dollars, [describing land,] in Bollinger Co., Mo., the last-described 165 acres to be Q. C. deed, balance warranty, from the owner, D. S. Crumb and his wife.

                                          "O. P. HEDGES & Co., Agents
                  "Bloomfield, Mo., August 20, 1881."
                

Hedges & Co. were real-estate agents at St. Louis, and had Crumb's land for sale as his agents. Hartzell, Hedges, and Crumb met at Bloomfield, and the above contract was then made on the day of its date. It was signed by Hedges in the presence of and at the request of Crumb. Hartzell then paid the $100, $50 of which Crumb retained, and the balance was handed to Hedges to procure abstracts, and forward them to Hartzell, in Indiana, and if satisfactory Hartzell was to send the balance of the purchase money to St. Louis. Crumb forwarded deeds to a bank at St. Louis on the twenty-second of the same month, to remain there for 10 days. The first abstract was not such as Hedges and Crumb saw fit to submit to Hartzell, and others were procured. This caused considerable delay. In the mean time the bank returned the deeds to Crumb. Hartzell received the abstract about October 13, 1881, and at once remitted the balance of the purchase money to a bank in St. Louis. Crumb, on receiving notice of this, wrote Hedges a letter in which he inclosed a check for the $50 earnest money, and in it says: "I became satisfied that your purchaser had given up the trade, and gave Weber the refusal again. He this day tells me he will take the land." Hedges refused to receive the check, saw Crumb, and it would seem the latter agreed to make the deeds. At all events, on the twenty-fourth October, 1881, Crumb sent to St. Louis a quit-claim deed of the land to Hartzell. In a letter of the same date to Hedges he notified the latter of that fact, and then refers to adverse claim made to the land, and says he does not want, at the price at which he was selling the land, to have any trouble thereafter. Hartzell refused to accept this deed, and insisted upon warranty and quitclaim deeds as agreed upon in the contract. There is evidence to the effect that Crumb refused to make the deeds as he had agreed, because of the increased value of the lands from the contemplated or actual construction of a railroad near to them. On the other hand, there is evidence tending to show that the abstracts disclosed some defects in Crumb's title; that Bollinger county made claim to the land, and for these reasons he declined to convey to plaintiff by warranty deed. He sold the land to Brown on April 4, 1882, by quitclaim deed for $1,500.

It is earnestly insisted in an elaborate brief for the appellant that the court erred in the instruction as to the measure of damages. By this instruction the jurors were told that the measure of damages would be the sum paid on the contract, with 6 per cent. interest, and, in addition thereto, the difference between the price Hartzell & Bros. agreed to pay and the market value of the land at the time of the breach. The rule of Flureau v. Thornhill, 2 W. Bl. 1078, is strongly contended for by the appellant. There it was held if the title proved bad, and the vendor was, without fraud, incapable of making a good one, the purchaser was not entitled to damages for the goodness of his bargain. The reason for the rule as given by BLACKSTONE, J., is that these contracts are merely upon condition, frequently expressed, but always implied, that the vendor has a good title. After nearly 100 years it was again ruled in Bain v. Fothergill, L. R. 7 Eng. & Ir. App. 158, that upon a contract of sale of real estate, where the vendor, without default, is unable to make a good title, the purchaser is not entitled to recover damages for the loss of his bargain. The fluctuation and the different applications of the rule are fully discussed in the case last cited, and also by all the text writers upon the subject. The authorities in the United States as to the measure of damages, where the breach is on the part of the vendor, are conflicting, and cannot be made to harmonize. It would seem that where the doctrine of Flureau v. Thornhill, supra, has been applied in whole, or with modifications, the question of good or bad faith on the part of the vendor is made an element in determining the measure of damages.

In Kirkpatrick v. Downing, 58...