Plummer v. Rigdon

• Decision Date: 30 September 1875
• Citation: 78 Ill. 222,20 Am.Rep. 261,1875 WL 8458
• Parties: GEORGE W. PLUMMERv.CHARLES W. RIGDON.
• Court: Illinois Supreme Court

78 Ill. 222

1875 WL 8458 (Ill.)

20 Am.Rep. 261

GEORGE W. PLUMMER

v.CHARLES W. RIGDON.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Superior Court of Cook county; the Hon. JOHN BURNS, Judge, presiding.

Messrs. BRANDT & HOFFMAN, for the appellant.

Messrs. BAKER & OSGOOD, for the appellee. Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action of assumpsit, brought by Charles W. Rigdon, to recover damages from George W. Plummer, for the breach of a written contract executed by the parties for the exchange of certain real estate in Chicago.

A trial of the cause before a jury resulted in a verdict in favor of Rigdon, for $3000. The court denied a motion for a new trial, and rendered judgment upon the verdict, to reverse which, this appeal was brought.

It is first urged that, even if the measure of damages had been the difference in value between the lands agreed to be exchanged, the verdict is against the evidence.

In regard to the real value of the lands agreed to be exchanged at the time conveyances were to be made, the evidence was conflicting, and while the evidence might seem to preponderate in favor of appellant, yet, under the uniform decisions of this court, unless it is apparent the jury have been actuated by passion or prejudice, and rendered a verdict manifestly wrong, we can not interfere.

The difference between the actual value of the lands agreed to be exchanged, which formed the basis for the verdict, was purely a question of fact for the jury, and, as is usual in proving the value of property, there was a clear conflict in the proof, which it was the duty of the jury to reconcile. This they seem to have honestly done, and it is by no means certain, if the same facts were submitted to another jury, under the same instructions, the result would be otherwise. Under such circumstances, if the law applicable to the facts has been properly given, the verdict must be regarded as final.

The next question properly arising upon the record involves a consideration of the instructions in regard to the measure of damages.

The court, at the instance of appellee, instructed the jury, in substance, that the measure of damages was the difference between the value of the lands agreed to be exchanged, and refused the instructions of appellant which, in substance, confined the recovery to actual expenses and damages suffered, excluding any difference in the value of the property agreed to be exchanged.

It is clear, from the evidence, that appellant's failure to convey the property embraced in the contract did not arise from any impure motive or fraudulent purpose. The difficulty was, that he only had title to an undivided half of the property agreed to be conveyed, while the other undivided half was in one McClintock, who refused to join in the conveyance, and carry out the written contract of sale which appellant had entered into.

Appellant, no doubt, at the time he made the contract, thought and honestly believed that McClintock, who was, at the time, his father-in-law, would join with him in the conveyance of the property. This, however, McClintock refused to do. This left appellant powerless to perform the contract.

The question, then, presented is this: Where a vendor contracts to sell real estate for a stipulated price, at a certain time, and, upon the arrival of the appointed time, is unable to convey, in an action brought by the vendee to recover for a breach of the contract, what is the true measure of damages?

This point arose at an early day in this State, and, independent of what view we might now be inclined to take, were it a new question, it must be regarded as settled by the former decisions of this court.

In Buckmaster v. Grundy, 1 Scam. 310, which was an action of covenant, brought by the vendee against the vendor, to recover damages for a failure of the vendor to convey lands as required by a contract under seal, the court said: “It is also urged that the exact sum actually paid must not only be averred but proved, and that the sum so paid, and interest, constitute the measure of damages to be assessed by the jury. Though this may be the rule in an action upon a warranty, to recover back the consideration, in case of eviction, it is not the rule in an action of covenant for a breach in failing to convey according to the terms of the contract. In such case, the value of the land at the time it is to be conveyed (as established by evidence,) is the true measure of damages.”

The same question again arose in McKee v. Brandon, 2 Scam. 339, and the court, in deciding the point, said: “The rule was correctly laid down, that the measure of damages for the non-conveyance of the land, was the value of the land at the time it was to be conveyed.”

In Gale v. Dean, 20 Ill. 320, which was an action brought by Dean against Gale, to recover for a breach of a contract which provided that Gale should procure a conveyance of a tract of land from a third party, it was said: “The measure of damages in this case was not the value of the land when the contract was made, but its value at the time of the breach of that contract.”

Under these authorities, it may be regarded as the settled law in this State, that, in an action by a vendee to recover damages for a failure to convey, the value of the land at the time the conveyance is to be made, is the true measure of damages.

It is true, a different rule prevails in England, and it was held, in the leading case of Flurean v. Thornhill, 2 W. Blackstone, 1078, that, upon a contract for a purchase, if the title proves bad, and the vendor is (without fraud) incapable of making a good one, the purchaser was not entitled to damages for the fancied goodness of the bargain which he supposed he had lost.

But even in that country the decisions of the courts do not seem to be harmonious upon the question, and,...