Kirkpatrick v. Downing

• Decision Date: 31 October 1874
• Citation: 58 Mo. 32
• Parties: THOMAS KIRKPATRICK, Respondent, v. WILLIAM G. DOWNING, Appellant.
• Court: Missouri Supreme Court

58 Mo. 32

THOMAS KIRKPATRICK, Respondent,

v.WILLIAM G. DOWNING, Appellant.

Supreme Court of Missouri.

October Term, 1874.

Appeal from Knox Circuit Court.

Glover & Shepley and J. G. Blair, for Appellant.

I. The rule which makes a vendor liable for the value of the land he agreed to convey, at the time he ought to have conveyed, and for no more, is equal and just.

This is the measure of damages applicable to the case. The consequence is that when the vendor refuses to convey, the vendee not having paid the purchase money, the vendee is entitled to the full value of the premises on the day of the breach of contract minus the purchase money, remaining unpaid. If the land is not equal in value to the residue of the purchase money, the vendee is not damaged. This rule is established by the best authorities. (Shepperd vs. Hampton, 3 Wheat., 200.) The same principle is applicable to land as to personal property. (Hopkins vs. Lee, 6 Wheat., 109.) The overwhelming weight of authority is in support of the doctrine, whether the thing to be conveyed be lands or chattels. (Loomis vs. Wathams, 8 Gray, 557; Lawrence vs. Chase, 54 Me., 196; Old Colony, etc. vs. Evans, 6 Gray, 25; Cox vs. Henry, 32 Pa. St., 18; Gale vs. Dean, 20 Ill., 320; Letcher vs. Woodson, 1 Brock., 212; Warren vs Wheeler, 21 Me., 484; Buckmaster vs. Grundy, 1 Scam., 310; McKee vs. Brander, 2 Scam., 339; Brenkerhoff vs. Phelps, 43 Barb., 471; Conger vs. Weaver, 24 Barb., 100; S. C., 20 N. Y., 140; Hill vs. Hobart, 16 Me., 169; Whiteside vs. Jennings, 19 Ala., 784; Nichols vs. Freeman, 11 Ired., 99; Koeltz vs. Bleckman, 46 Mo., 320.)

II. The rule adopted by some of our courts, allowing the vendee to recover amount paid with interest, is based upon the idea that the vendee having paid all he contracted to pay is entitled to recover all he contracted to receive. The principle of that rule however has never been extended, as we can see, so far as to allow vendee to recover all paid, when he has not paid all he contracted to pay, and where the land has depreciated in value. In such cases the rule of measuring damages, laid down by the Supreme Court, (S. Carolina, 11 Ired. 99, and Sedgwick on D., 6 Ed. side page 190 to p. 221,) that the difference between the value of the land at the breach and the amount of the purchase money remaining unpaid, is the only true and equitable rule, and being analagous to this case should govern it. This is based upon the uniform principle that a man should only recover actual damages sustained, in the absence of fraud. (6 Sedg., Meas. Dam., 174, 229.)

G. F. Ballingal, for Respondent.

I. Plaintiff was in possession of the land as purchaser of defendant, and the relation of landlord and tenant, could not be made to exist between them; (Coffman vs. Huck, 19 Mo., 435; Griffith vs. Depenstal, 3 A. K. Marshall, 1058,) and the charge for rent and profit could not be sustained.

II. Time was not made of the essence of the contract, and if defendant had disabled himself from conveying to plaintiff, by the sale to Baker, then he was at fault and plaintiff was not limited to the penalty in the bond and could waive the same and sue for damages. (Foley vs. McKeegan, 4 Iowa, 1; Sween vs. Steele, 5 Iowa, 352.)

III. If there was no bad faith on the part of defendant in selling the land to another person, and if there is no cancellation, then the measure of damages would be the purchase money and interest; and it was immaterial what the value of the land was at the time plaintiff purchased of defendant, or the improvements thereon, or the improvements at the time defendant sold to Baker, or the value at the time defendant sold to Baker, or the value of the land, or the improvements on said land to Baker by defendant, or whether the same had increased or decreased in value since the sale to plaintiff, and up to the sale to Baker. And if there is bad faith, then the vendee can recover not only the purchase money and interest, but substantial damages. (Coffman vs. Huck, 19 Mo., 435; Foley vs. McKeegan, 4 Iowa, 1; Werting vs. Nisely, 13 Penn., 650; Clark vs. Parr, 14 Ohio, 118; Pena vs. Duvall, 9 B. Mon., 48; Shaw vs. Wilkins, 8 Humph., 647; Peters vs. McKeon, 4 Denio, 546; Kinney vs. Watts, 14 Wend., 38; Pitcher vs. Livingston, 4 John., 1; Fletcher vs. Button, 6 Barb., 646; Bitter vs. Brough, 1 Jones, Pa., 127; Griffith vs. Depew, 3 A. K. Marshall, 1058; 45 Mo., 404; Langford vs. Caldwell, 48 Mo., 508; Goff vs. Hanks, 5 J. J. Marshall; Davis vs. Lewis, 47 Bibb., 457; Breckinridge vs. Hake, 4 Bibb., 272; Combs vs. Harlton, 2 Dana, 464; Lowry vs. Cox's admr. and heirs, 2 Dana, 469; Brandt vs. Foster, 5 Iowa, 287; Patrick vs. Roach, 21 Texas, 251; Sween vs. Steele, 5 Iowa, 352.)

WAGNER, Judge delivered the opinion of the court.

The plaintiff, Kirkpatrick, filed his petition, in which he stated that on the 25th of August, 1857, the defendant, Downing, was owner in fee of 160 acres of land, which was therein described; and that on the same day Downing sold the same to Kirkpatrick, for the sum of $3,200, and executed to him a title bond therefor; that Kirkpatrick paid in money and property $500 at the time, and gave his five several promissory notes for the balance, each for the sum of $540, and payable respectively, in one, two, three, four and five years; that, by the terms of the bond, Downing was to make a deed to plaintiff upon the payment of the last note; that Kirkpatrick took possession of the land, and on March 1, 1859, with the consent of Downing, he sold 40 acres of the land to Charles Hughes, for $1,200, which amount was paid by Hughes to Downing, and which was to be credited on the indebtedness of the plaintiff; that plaintiff occupied and cultivated the land to sometime in 1865, and paid $80 taxes on it, and made lasting and valuable improvements thereon, costing $1,000, and cleared thirty-five acres of land, which was worth $700, and paid the promissory notes in full, and demanded of Downing a deed for the land, which he refused to make; and that he sold and conveyed the land to one Baker; that in 1864, whilst plaintiff was absent from home, Downing procured fraudulently from plaintiff's son a surrender of the title bond, the son having no authority to give it up. The petition then prayed judgment for $1,780, the value of the improvements made and amount of taxes paid, and also $3,200 purchase money, with interest thereon.

In substance the answer of Downing stated that he was the owner of the lands in fee simple; sold them to plaintiff at the price and upon the terms stated in the petition; and that he bound himself, upon payment in full of the notes, to convey the title to the plaintiff. The answer denied the payment of the notes in full, and averred that, independent of the $1,200 paid by Hughes, plaintiff only paid $920; and that plaintiff and defendant agreed that the forty acres sold to Hughes, should be conveyed by defendant to Hughes. It was admitted that plaintiff made some improvements, but it was denied that he ever made as much as was alleged.

There was a denial of any fraudulent procurement of the surrender of the title bond. But it was alleged that plaintiff left home in 1861, his family residing on the land; and that they continued on it till 1865, and that plaintiff's wife was his agent during his absence; that in 1864 plaintiff's family were committing waste on the land, impairing defendant's security for the purchase money, and that defendant remonstrated with her about it, and that she said that she was authorized to rescind the contract, and produced a letter to that effect from her husband; and that the contract was then and there cancelled; and that the two remaining notes which were due, amounting, with interest, to about $1,900, were delivered to her by the defendant; that these notes, with the interest, were greater in amount than the value of the land; and that in pursuance of this cancellation, plaintiff's family left the land.

That afterwards, in 1865, defendant sold the whole 160 acres for $1,600, the full value of it at that time; and at the same time the 120 acres were not worth more than $900; that plaintiff and his family were in possession of the land from 1857 to 1865, cultivating the same and enjoying the crops, the use of the land being of the annual value of $400, which defendant prayed to have recouped; that, while in possession of the land, plaintiff committed waste, cut down and carried away timber to the value of $500, which was also asked to be recouped.

All that part of the answer in reference to a sale of the land to another person for its full value, and the annual value of the rental of the land, and the waste committed by the plaintiff whilst in possession, was stricken out. The plaintiff then filed a replication to the new matter set up in the answer, and the cause was tried before the court and a jury, and a verdict was rendered for the plaintiff for $2,076.60. It is unnecessary to notice any of the points made in relation to the admission or exclusion of evidence, as we have been unable to perceive any substantial error in the rulings of the court in that respect.

The evidence was conflicting in regard to the authority of plaintiff's wife to deliver up the title bond and rescind the contract, and the jury by their verdict, evidently found that she possessed no such authority. That was a matter for them to determine on the testimony, and with their verdict we have no right to interfere. That part of the answer asking for a recoupment for the value of the rent and damages was rightfully stricken out. The relation of landlord and tenant did not exist in this case, and that is the only relation upon which the defense would have been available. The case of Coffman vs. Huck, (19 Mo., 435) is a direct authority for this proposition, and it was there held that a party who enters upon land as a vendee cannot, upon a subsequent rescission or breaking up of the contract of sale, be made liable for the...