Atwood v. Walker

• Decision Date: 18 September 1901
• Citation: 61 N.E. 58,179 Mass. 514
• Parties: ATWOOD v. WALKER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 514

61 N.E. 58

ATWOOD v. WALKER.

Supreme Judicial Court of Massachusetts, Hampden.

September 18, 1901

COUNSEL

J. B. Carroll and W. H. McClintock, for plaintiff.

E. H Lathrop, for defendant.

OPINION

LATHROP J.

1. The first question arising in the case is whether the defendant has any ground of exception to the refusal of the justice of the superior court to give the three instructions requested and to the ruling given. It may be admitted that enough does not appear on the bill of exceptions as originally allowed but enough appears from the amended bill of exceptions to show that the points were duly taken at the trial that the contract in question was a New York contract, and that damages for a breach of it should be assessed in accordance with the rule established in New York, and not by the rule in Massachusetts. It also appears that the defendant's counsel was about to read authorities, which he stated extablished the New York rule, when the judge said he did not care to hear them, and that, whatever might be the New York rule, he should instruct the jury to assess the damages in accordance with the rule established in Massachusetts. The bill of exceptions sets forth that the defendant states that the authorities were as follows, giving a list of them, and the judge adds that he has no doubt of the correctness of the statement, but has no minutes in regard to the authorities and no memory further than that authorities were produced. It seems to us clear that it is open to the defendant to argue the questions of law presented. The defendant was cut off from putting in evidence as to the law of New York, the judge considering it immaterial on the question of damages. We are of opinion that it sufficiently appears by the amended bill of exceptions what this evidence was.

2. Coming to the merits of the case, the action is brought for breach of a contract to convey to the plaintiff certain land and personal property situated in Belchertown, in the county of Hampshire, in this commonwealth. The purchase price was $6,000. The value of the personal property, as agreed for the purposes of the trial was $2,000. The plaintiff was a resident of New Haven, Conn., temporarily residing in Springfield, and the defendant was a resident of New York. The plaintiff and the defendant never met, and the negotiations on the part of the defendant were conducted by William Man, of New York City, and in New York, who was the agent and attorney of the defendant there. There were various letters between the plaintiff and Man, which contain the alleged contract; and there were verbal negotiations between the plaintiff and Man at the office of the latter in New York. The defendant was unable to give a good title to the real estate without fault on her part. It appears from the testimony of the plaintiff that the deed was to be delivered and the money paid at the office of Mr. Man in New York. We are of opinion, therefore, that the judge should have given the first instruction requested, namely: 'Upon all the evidence the jury must find that the contract was made in New York, and to be executed there.' We infer that the judge did not give this instruction because he did not consider it material.

3. The second and third instructions requested may be considered together, and were as follows: '(2) If the jury find that the contract for the sale of the real estate was made in New York, and to be executed there, and the defendant, believing herself to have a good title, agreed to convey the same believing that she was able so to do, the plaintiff can recover no damages except his reasonable counsel fees for examining title and necessary expenses connected therewith. (3) If the contract was made in New York by the defendant, and to be executed there, and was made by her in good faith, the contract price is conclusive; and the plaintiff, having paid nothing, can recover nothing.' The presiding judge refused to rule as requested, but instructed the jury that, if the contract was made, and the defendant failed to carry it out, or refused so to do, by reason of inability to give a good title, the plaintiff could recover the amount, if any, by which the fair market value of the real estate exceeded, if any, the purchase price. The jury found for the plaintiff in the sum of $7,271. The defendant's exceptions are not only on the refusal to rule as requested, but also to the ruling given. It is apparent from the amount of the verdict that, if there was error on the part of the judge, the defendant has a very substantial grievance. The first question is as to the law of New York, and this is to be determined from the authorities put in evidence by the defendant, the plaintiff having put in no evidence on this subject. An examination of the authorities shows that in New York, in an action for breach of an agreement to convey land, if the defendant has acted in good faith, believing that he had a good title, and he is unable to convey on account of a defect in his title, only nominal damages can be recovered. Baldwin v. Munn, 2 Wend. 399, 20 Am. Dec. 627; Peters v. McKeon, 4 Denio, 546; Conger v. Weaver, 20 N.Y. 140; Margraf v. Muir, 57 N.Y. 155; Cockcroft v. Railroad Co., 69 N.Y. 201. Where the vendee has paid the purchase money in whole or in part, so much as is paid may be recovered back. Fletcher v. Button, 6 Barb. 646. So, too, the vendee may recover for the expense of examining the title, if any such expense has been incurred. Northridge v. Moore, 118 N.Y. 419, 23 N.E. 570. If, however, a person contracts to sell lands which he knows at the time he has not the power to sell and convey, he is liable to make good to the vendee the loss of his bargain; and it does not excuse the vendor that he may have acted in good faith, and believed, when he entered into the contract, that he would be able to procure a good title for his purchaser. Pumpelly v. Phelps, 40 N.Y. 59, 100 Am. Dec. 463. There is nothing in this case to show that the defendant acted in bad faith, or that she knew of the defect in her title. The second request states the law in New York with substantial accuracy, as we understand the facts of the case. The third request states the law in New York too broadly. ...