Potts v. Moran's Ex'rs

• Decision Date: 11 November 1930
• Citation: 236 Ky. 28,32 S.W.2d 534
• Parties: POTTS v. MORAN'S EX'RS.
• Court: Kentucky Court of Appeals

32 S.W.2d 534

236 Ky. 28

POTTS v. MORAN'S EX'RS.

Court of Appeals of Kentucky

November 11, 1930

Appeal from Circuit Court, Jefferson County, Common Pleas Branch Fourth Division.

Suit by E. R. Potts against Thomas W. Moran. During the progress of the action, defendant died and the case was revived in the name of his executors. From the judgment, plaintiff appeals.

Affirmed.

Woodward Hamilton & Hobson, of Louisville, for appellant.

Dodd &amp Dodd, of Louisville, for appellees.

CLAY J.

In the fall of 1925, Thomas W. Moran entered into a written contract by the terms of which he agreed to sell to E. R. Potts approximately 1,037 acres of land in Seminole county, Fla at the price of $30 an acre. Moran declined to carry out the contract on the ground that his wife, Ella Moran, refused to unite in a deed conveying the property. Thereupon Potts brought this suit to recover $36,295, it being the difference between the contract price and the price at which he claimed he had sold the property. During the progress of the action Moran died and the case was revived in the name of his executors. At the conclusion of the evidence the trial court instructed the jury to return a verdict for Potts in the sum of $1. Potts appeals.

It is insisted that the action of the court limiting appellant's recovery to nominal damages was erroneous, and that appellant was entitled to his bargain, that is, to the difference between what he agreed to pay Moran for the land, and the price at which he could have sold it at the time of Moran's failure to convey. In the case of Crenshaw v. Williams, 191 Ky. 559, 231 S.W. 45, 48 A. L. R. 5, the facts were these: Williams had signed a contract agreeing to convey to Crenshaw a tract of land at a certain price. As the title to the land was in Williams' wife for life with remainder to her children, Williams was unable to convey a good title to the land, and Crenshaw brought suit to recover the sum of $20,000, which he claimed was the difference between the contract price and the market value of the land at the time of the sale. After an examination of the decisions of this and other courts, we announced the rule that a vendee of real estate is not entitled to damages for the loss of his bargain upon the inability of the vendor to make a good title, where the vendor acted in good faith and was guilty of no active nor positive fraud in the transaction. We also held that mere failure of a vendor of real estate to refer the vendee to his record of title, or the judicial decisions bearing upon it, was not such fraud as to deprive him of the benefit of the rule that damages for loss of bargain will not be awarded against a good-faith vendor who is unable to convey a good title. In reaching this conclusion we called attention to the fact that we had uniformly ruled that the measure of damages upon a breach of warranty of title was the value of the land lost as fixed by the consideration paid or agreed to be paid. We further pointed out that, with respect to the measure of damages, there was no substantial difference between a breach of warranty of title, and the breach of a covenant to convey where the vendor acted in good faith, and quoted with approval the following excerpt from the opinion of this court in Goff v. Hawks, 5 J. J. Marsh, 341: "Since the decision in the case of Cox's Heirs v. Strode, 2 Bibb, 276 , the criterion of damages upon a covenant to convey land, which has been violated, but without fraud on the part of the covenantor, is the purchase money and interest thereon, or in the language of the case of Rutledge v. Lawrence, 1 A. K. Marsh. 397, it is, the 'value of the land at the time of the sale, to be ascertained by the consideration fixed or other evidence.' If, however, the covenantor has been guilty of fraud, a different rule may govern the case. Then, he would be responsible for the increased value of the land, at the time his covenant should have been performed." At the same time we disapproved of the case of Jenkins v. Hamilton, 153 Ky. 163, 154 S.W. 937, in so far as it announces a contrary doctrine. In reaching this conclusion we followed, not only our own cases, but the early case of Flureau v. Thornhill, 2 W. Bl. 1078, 96 Eng. Rep. 635. It is true that many of the courts have refused to follow the English rule and have assigned various reasons for their refusal. One of them, after adverting to the fact that some of the courts applied the nominal damages rule because of the analogy between a breach of covenant to convey and a breach of warranty, held that the reason was not applicable in that state inasmuch as the measure of damages in that state for a breach of covenant of quiet enjoyment and warranty of title was not the consideration paid for the land and interest, but the value of the land at the time of the eviction. Doherty v. Dolan, 65 Me. 87, 20 Am. Rep. 677. In view of the fact that the conclusion in the case of Crenshaw v. Williams was reached only after the most careful consideration and finds support, not only in our own cases, but in many other jurisdictions, we are not inclined to depart from the rule there announced.

It remains to determine whether the refusal of Moran's wife to unite in the deed was a failure of title within the rule respecting the measure of damages.

It may be conceded that some of the authorities relied on by appellant, as well as others, are to the effect that, where the reason for the breach by the vendor of the contract to convey real estate is the refusal of his or her spouse to join in the deed, the vendee is entitled to recover as an element of damage compensation for the loss of his bargain. Greenberg v. Ray, 214 Ala. 481, 108 So. 385; Key v. Alexander, 91 Fla. 975, 108 So. 883; Puterbaugh v. Puterbaugh, 7 Ind. App. 280, 33 N.E. 808, 34 N.E 611; McAdam v. Leak, 111 Kan. 704, 208 P. 569; Drake v. Baker, 34 N. J. Law, 358; Stone v. Kaufman, 88 W.Va. 588, 107 S.E. 295; Greer v. Doriot, 137 Va. 589, 120 S.E. 291; McCarty v. Lingham, 111 Ohio St. 551, 146 N.E. 64; Grosso v. Sporer, 123 Misc. 796, 206 N.Y.S. 227. It appears from...