Hartsock v. Mort

• Decision Date: 17 November 1892
• Citation: 25 A. 303,76 Md. 281
• Parties: HARTSOCK v. MORT.
• Court: Maryland Court of Appeals

25 A. 303

76 Md. 281

HARTSOCK v. MORT.

Court of Appeals of Maryland

November 17, 1892

Appeal from circuit court, Carroll county.

Action by Franklin Mort against Joseph H. Hartsock for breach of a covenant to convey land. From a judgment for plaintiff defendant appeals. Affirmed.

Argued before ALVEY, C.J., and BRYAN, PAGE, FOWLER, BRISCOE, and MCSHERRY, JJ.

Wm. P. Maulsby, for appellant.

Wm. A. McKellip and H. M. Clabaugh, for appellee.

MCSHERRY J.

The declaration in this case alleges, in substance, that by a written contract under seal, entered into between the appellant and the appellee, the former agreed to sell to the latter a farm for a stipulated sum of money, and to execute a conveyance therefor, and to deliver possession thereof, on April 1, 1890, and that the appellee on his part undertook and promised to pay part of the purchase money on the execution of the contract, another part on the 1st of April 1890, and on the same day to execute to the vendor a mortgage upon the land sold for the residue of the purchase money, payable in one sum, at the expiration of three years, with interest from its date; that the appellee paid the cash payment, and on the 1st day of April, 1890, tendered the second payment, and executed and offered to deliver to the appellant a mortgage securing a promissory note for the final payment, but that the appellant did not deliver to the appellee a deed for, and did not deliver to him possession of, the farm, as he was bound by the contract to do; and that in consequence of this breach the appellee was entitled to recover damages from the appellant, and that he was likewise entitled to recover back the portion of the purchase money paid by him upon the execution of the agreement. To this declaration the appellant pleaded 13 pleas, but, as no question involving a discussion of these pleas is raised in the record, no special reference need be made to them.

During the progress of the trial 6 exceptions were reserved, 5 of these being to rulings of the court on the admissibility of evidence, and 1 to the granting of the appellee's first and second instructions and to the rejection of the appellant's 23 prayers. After verdict, a motion in arrest of judgment was filed, but this was overruled, and judgment against the appellant was thereupon entered, and this appeal was then taken by him.

The first exception was taken to the admission in evidence of the contract alleged to be the one sued on, and the second to the admissibility of the mortgage executed by the appellee and tendered by him to the appellant. Both the contract and the mortgage were objected to on the ground of variance, and substantially the same question is involved in each of these two exceptions. A consideration of one will therefore dispose also of the other. The declaration does not set out the agreement in its precise words, but purports to give only its legal effect. If its legal effect is accurately stated, the paper itself is admissible in evidence, notwithstanding a difference in phraseology between it and the declaration. The rule which requires the proof to agree with the allegation has reference, under declarations setting forth the legal effect of instruments sued on, to substance, and not to mere identity of expression. 1 Greenl. Ev. § 69. If, then, the contract described in the declaration is identical in legal effect with that offered in evidence, there was and could be no variance between them. Now, the declaration alleges that the appellee tendered to the appellant a promissory note secured by a mortgage for the deferred payment; and as the written contract provides merely for a mortgage with reference to this same payment, without regard to any note whatever, it is insisted that there is in this respect a fatal variance between the allegation and the proof. The obligation imposed by the contract on the appellee was to execute a mortgage to secure the final payment, the lien of the mortgage being the substantial element of that covenant. The mortgage actually tendered secured a note for the amount of that final payment. But precisely the same result would have been reached by either method,--by either the final payment would have been secured by the lien of a mortgage on the same property, for the same sum of money, payable on the same day. The note and the mortgage would have secured to the appellant (leaving out of view the cumulative remedy he might have had on the note) exactly what he contracted for,--a mortgage lien on the land sold, for the deferred payment. In substance, then, the contract alleged according to its legal effect, and the contract offered to be proved, though differing in the words by which they are expressed, are essentially one and the same; and there was no error in admitting the evidence objected to in the first exception.

The note secured by the mortgage was either an ingredient--a necessary attribute--of the mortgage, or it was not. If it was, then, though not mentioned in the contract, it was proper that it should be signed and delivered as a part of the mortgage; if it was not, then its execution could neither invalidate nor render the mortgage less a lien than the contract required. In either event, therefore, the mortgage tendered by the appellee was in accordance with his contract. This being so, it is equally obvious that there was no variance between the mortgage provided for in the contract and the one executed by the appellee, and there was no error in the ruling objected to in the second exception.

The 3d 4th, and 5th exceptions were taken to the refusal by the court to allow the appellant to offer in evidence certain declarations made by the appellee on the last day of March, 1890, to the effect that he would not take the farm according to the written contract. This proffered testimony was properly excluded. It proved no issue in the case. It was not admissible, as tending to show that the appellee had himself committed a breach of the contract. The question was, did the appellee comply with the covenants on his part? and not, did he intend not to comply with them? If he did in fact comply, his antecedent declarations, not acted on, that he would not comply, were wholly immaterial. They were not even admissible as reflecting on the question of damages. In an action for a breach of covenant to convey land, the measure of damages is well defined. In Hammond v. Hannin, 21 Mich. 374. Judge COOLEY collected and reviewed numerous cases, and stated as a result the following conclusions: "If the vendor acts in bad faith,--as, if having title he refuses to convey, or disables himself from conveying,--the proper measure of damages is the value of the land at the time...