Greer v. Doriot

• Decision Date: 15 November 1923
• Citation: 120 S.E. 291
• Parties: GREER . v. DORIOT.
• Court: Virginia Supreme Court

120 S.E. 291

GREER .

v.DORIOT.

Supreme Court of Appeals of Virginia.

Nov. 15, 1923.

Kelly, P., and West, J., dissenting.

Error to Corporation Court of Bristol.

Action commenced by notice of motion by Henri Doriot against W. P. Greer. Judgment for plaintiff, and defendant brings error. Reversed, and new trial awarded.

On May 26, 1921. Henri Doriot and W. P. Greer entered into the following written contract:

"This contract memorandum made this 26th day of May, by and between H. Doriot and W. P. Greer, all of Bristol, Va., witnesseth:

"That said parties have this day traded houses as follows: The said Doriot agrees to buy the said Greer's house at the corner of Oak and Sycamore streets, Bristol, Virginia, for the sum of $6,500.00, paying for same by deeding said Greer his house at 217 Ashe street, Bristol, Tennessee, and paying $3,000.00 in cash or good securities. These transfers to he completed on May 31, 1921, or as soon as feasible thereafter.

"Witness our hands this May 26, 1921.

"H. Doriot.

"W. P. Greer."

On May 31, 1921, two deeds were prepared by the direction of the parties, by which the contract was to be carried into execution. These deeds contained general warranty and the usual covenants of title. Henri Doriot and wife executed the deed conveying to Greer the property at 217 Ashe street, Bris tol, Tenn., and tendered it to him, and offered to pay the $3,000 in cash or good securities, as provided in the contract. On the day fixed for the completion of the contract, to wit, May 31, 1921, Greer failed to deliver to Doriot the deed from himself and wife conveying the property at the corner of Oak and Sycamore streets, Bristol, Va., giving as his reason for not complying with the terms of his contract his wife's refusal to sign the deed, which was true, as shown by the evidence. He, however, offered to himself execute and deliver the deed, but Doriot declined to accept such a deed.

On June 27, 1921, Doriot filed a bill in chancery against Greer praying that he be compelled to specifically perform the contract on his part. The defendant's demurrer to the bill was sustained in accordance with the doctrine of Haden v. Falls. 115 Va. 779, 80 S. E. 576, Ann. Cas. 1915C, 1034, with leave to amend, and, upon complainant's refusal to amend, the bill was dismissed without prejudice to his proceeding at law, if so advised.

On September 29, 1921, Doriot instituted this action against Greer, by notice of motion to recover damages for the breach of the aforesaid contract by the latter; such breach, consisting, as alleged, in the refusal of Greer to convey to Doriot the Oak street property by deed from himself and wife or otherwise comply with his contract, laying the damages at the amount of $5,000. There was a trial by jury resulting in the following verdict:

"We, the jury, find for the plaintiff in the sum of $3,500, together with normal damages $100."

On the motion of the defendant. Greer, for a new trial, the court reduced the nominal damages to $1 and entered judgment for the plaintiff for $3,501, with interest and costs, and the defendant brings error.

Further references to the evidence, so far as deemed material, are made in the opinion.

The material assignments of error by the defendant are to the action of the trial court in giving and refusing instructions and in refusing to set aside the verdict and grant the defendant a new trial; and there is a cross-assignment of error by the plaintiff to the action of the court in instructing the jury upon the measure of damages the plaintiff was entitled to recover for the failure of the defendant to convey his Oak street property.

S. V. Fulkerson, of Bristol, and H. E. Widener, of Abingdon, for plaintiff in error.

J. S. Ashworth, of Bristol, for defendant in error.

SIMS, J., after making the foregoing statement, delivered the following opinion of the court:

The question presented for decision by theassignments and cross-assignment of error is as follows:

(1) Did the court err in instructing the jury that, if they believed from the evidence by a preponderance thereof that the contract set up in the notice and introduced in evidence was made and breached by the defendant as alleged in the notice, the plaintiff was "entitled to recover the stipulated price of the Ashe street property, to wit, $3,500, but without interest, as it appears that the plaintiff has had the use and possession of same: and (that), in addition thereto, (the) plaintiff (could) only recover nominal damages on account of not getting a conveyance of the Oak street property?"

The question must be answered in the affirmative.

As construed by both parties, by the deeds which were prepared by their direction by which the respective conveyances provided for were to have been made, the contract required the defendant, Greer, to convey to the plaintiff, Doriot, Greer's Oak street property, with general warranty and covenants of title. Therefore the plaintiff had the right to require a marketable title to such property to be conveyed to him by the defendant. Sachs v. Owings, 121 Va. 162, 92 S. E. 997. Such, indeed, is the proper construction of the contract independently of said mutual construction of the parties, there being no evidence that the contrary was intended by them. Ford v. Street, 129 Va. 437, 106 S. E. 379. The deed from Greer, without his wife uniting therein, would not have conveyed a marketable title to the property, and the plaintiff, Doriot, had the right to reject such conveyance and to maintain the action against Greer for damages for breach of the contract in failing to deliver a deed to the Oak street property in which the wife of the latter joined as grantor. 27 R. C. L. § 236, pp. 509, 510, § 3S7, p. 630.

In section 236 of the valuable work just cited, this is said:

" * * * An inchoate right of dower is, according to the better view, an incumbrance, within the meaning of a vendor's agreement to convey a good or marketable title. * * * Therefore, whore a vendor is required to convey a title free of incumbrances, a tender of his general warranty deed, in which his wife does not join so as to bar her dower, is not a performance of or an offer to perform his contract, and the purchaser may reject such a conveyance and maintain an action for damages for breach of contract."

And in section 3S7 of the same work, just cited, this is said:

"And the fact that the inability of the vendor to convey is owing to the refusal of his wife to join in the conveyance so as to bar her dower does not prevent the vendor from being liable in such an action."

This brings us to the consideration of what is the measure of damages applicable in such case:

Under the English doctrine of Flureau v. Thornhill (2 W. Black 1078), which is also the Virginia doctrine on the subject (Matthews v. La Prade, 130 Va. 408, 107 S. E. 795; Davis v. Beury, 134 Va. 322, 114 S. E. 773, 115 S. E. 527, and authorities cited), if a vendor, at the time he enters into a contract of sale of real estate, which undertakes to convey a marketable title thereto, in good faith believes that he has such a title, but, at the time fixed for the completion of the contract, finds himself unable, through no fault of his own, to convey such title, and for that reason makes no conveyance, it is settled that, where none of the purchase money has been paid, the vendor is liable in general damages to the vendee for nominal damages only for the breach of the contract to convey. But where the situation of the vendor is such that the doctrine mentioned does not apply, it is uniformly held that for breach by the vendor of his contract? to convey the vendee is entitled to recover, as general damages, for the loss of his bargain, namely, the difference, if any, between the contract price of the property and its value at the time of the breach of the contract. And, as said in 27 R. C. L. § 388, p. 631:

"The same rule in effect has been announced as regards contracts for the exchange of land; that is, the plaintiff is permitted to recover the difference between the value of the land which he was to convey and that which he was to receive, where neither party has conveyed. * * * This is very generally recognized where the vendor cannot be said to have acted in good faith, as where * * * the vendor had knowledge of his want of or defects in his title."

In 2 Sutherland on Damages (4th Ed.) § 581, cited and quoted in Davis v. Beury, supra, 134 Va. at pages 343, 344, 114 S. E. 773, 115 S. E. 527, and, so far as material, again quoted here, it is said that the aforesaid doctrine of Flureau v. Thornhill does not apply if the vendor, at the time of the contract—

" * * * knew or should have known that he could not comply with his undertaking; * * * if-his contract to sell requires the signature of his wife to bar an inchoate right of dower, or the consent of a third person to render his deed effective. * * * "

In 27 R. C. L. § 389, pp. 632, 633, this is said:

"The rule permitting the purchaser to recover for the loss of his bargain has been applied where the vendor entered into the contract knowing that * * * his title was defective. * * * It has been held immaterial that the vendor may have in good faith be-lieved that he would be able to * * * convey a good title, as where a trustee agreed unconditionally to convey but was unable to do so because the beneficiary refused to give his consent; such consent being essential to the power to convey"—citing among other cases, Pumpelly v. Phelps, 40 N. Y. 59, 100 Am. Dec. 463.

In New York the doctrine of Flureau v. Thornhill is in force, as in Virginia, and, in the case last mentioned, the court said this:

"Where * * * the vendor contracts to sell and convey, in good faith, believing he has a good title, and afterwards discovers his title is defective, and for that reason, without any fraud on his part, refuses to fulfill his contract, he is only liable to nominal damages for a breach of his contract"—citing New...