were tolerated, it would enable defendants to have substantially the benefit of a justification in every case in which evidence could be procured to establish it, without notice to the plaintiff of such defense; for if admissible, and the justification should be proved, the least effect that could reasonably be given to it would be to reduce the inquest to nominal damages. This would be the standard of damages in all cases upon such proof." These reasons seem to us to be unanswerable when applied to the action of trespass, and they are not less cogent in their application to the present action of covenant for a breach of a contract under seal. If the testimony which would have defeated the action upon a plea in bar be admitted in mitigation of damages upon the defendant's default, it will give him the great advantage of repudiating his contract upon the payment of nominal damages, for no second action can be brought upon it. But if the defendant had pleaded, and thereby given the plaintiff notice of his ground of defense, the latter might have submitted to a judgment of nonsuit, and afterwards brought another action when he had done what was necessary on his part to enable him to sustain it. On an inquiry of damages, then, upon a default, all the material allegations of the plaintiff's declaration are to be considered as admitted by the defendant to be true, and the only question will be, What is the rule of damages in the particular case? If the damages be in their nature uncertain, as in many of the forms of action they will be, then the amount will have to be ascertained by the proofs which each party may be able to produce. If they are certain, or by computation capable of being reduced to a certainty, then there will be little or no room left for proof. In the case before us, the defendant covenanted to pay a certain price per acre for a tract of land, the number of acres of which was to be ascertained by a survey. It was so ascertained, and the sum agreed on to be paid was thus reduced to a certainty. That sum the plaintiff is entitled to recover as damages, unless it be the rule that a vendor of land, after doing everything he can towards the fulfillment of his part of the contract, can recover from the defaulting purchaser nominal damages only.

This is an important practical question, and upon it the decisions of courts in different countries do not seem to be uniform. In England, it is said that when the vendee refuses to perform the measure of damages is held to be the difference between the price fixed in the contract and the value at the time fixed on for the delivery of the deed; so that if the property

AM. DEC. VOL. LXVII-18

does not fall in value the vender can get nothing but nominal damages. Thus in the case of Laird v. Pim, 7 Mee. & W. 484, where an eminent judge, Baron Rolfe (who is now the Lord Chancellor Cranworth), had at the trial restricted the vendor to nominal damages, the court of exchequer, on the argument of a rule to show cause why the damages should not be increased to the amount of the purchase money, said: “The question is, How much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase money, in consequence of the non-performance of the contract? It is clear he cannot have the land and its value too." There are, indeed, some prior English cases which seem to have held a contrary doctrine: Goodisson v. Nunn, 4 T. R. 761; Glazebrook v. Woodrow, 8 Id. 366. In Vermont, the rule as laid down by the court of exchequer was recognized: Sawyers v. McIntire, i8 Vt. 27. A different rule prevails in Maine: Alna v. Plummer, 4 Greenl. 258; and in New York: Shannon v. Comstock, 21 Wend. 457 [34 Am. Dec. 262]; Williams v. Field, stated shortly in a note to page 192 of Sedgwick on Damages. Mr. Sedgwick says that the question is evidently not free from perplexity. On the one hand, it is said that the vendor, by making a tender, has performed his contract so far as it lies in his power; that his right is complete to the performance of the contract by the vendee, and that this performance is the payment of the purchase money. But on the other side, it is replied with great force, that the recovery cannot pass the fee in the land; that the legal seisin still remains as at first; that the vendor has not parted with his property; that if the land has not fallen in price he has lost nothing; that the common law gives damages for none but actual loss; and it is insisted that the true measure of damages in such a case is the difference between the stipulated price and the actual value at the time of the breach, or perhaps at the time of the trial:" Sedgwick on Damages, 191, 192. The author, in a note to the page last referred to, expresses his preference for the latter rule, though he admits that it is different with respect to the sale of personal chattels: See Id. 281.

The counsel have not referred us to any case in our court where the rule has been settled. In the absence of an express adjudication, we feel at liberty to adopt the rule that gives to the vendor the contract price, with interest thereon, when he shows he has done all in his power to complete the contract on his part, by making and tendering a deed to the vendee. If a court of law cannot take into consideration the fact that upon

the payment of the purchase money the court of equity will compel the execution of a deed by the vendor, it can enforce its own salutary principles, that no person shall take advantage of his own wrong; and will thus prevent an unscrupulous vendee from mocking his innocent vendor, by refusing to perform his solemn engagement, and submitting to a judgment for a penny damages.

The judgment given in the court below in favor of the plaintiff for sixpence damages is reversed; and judgment will be entered in this court in his favor, upon the special verdict for two thousand eight hundred and seventy-two dollars and fifty cents, and also for costs.

Judgment reversed.

DEFAULT ADMITS CAUSE OF ACTION and material and traversable averments, but not the amount of damages: Willson v. Willson, 57 Am. Dec. 320, and prior cases collected in note 330.

IT IS DUTY OF VENDOR TO PREPARE DEED and have it ready for delivery when he demands the payment of the purchase money: Hardy v. McKesson, 7 Jones L. 571, citing the principal case; which is again cited in Parker v. Smith, 64 N. C. 292, to the point that judgment by default admits plaintiff's claim for damages when the damages are precise, and fixed by agreement of the parties. The main case is again cited in Lee v. Knapp, 90 Id. 178, to the point that in an inquiry of damages upon a judgment by default nothing that would have amounted to a plea in bar can be given in evidence to reduce the damages.

MEASURE OF DAMAGES AGAINST VENDEE FOR REFUSING TO PERFORM HIS CONTRACT FOR PURCHASE OF LAND.-1. ENGLISH DOCTRINES.-It has been said in England that actions against the vendee of land by the vendor for refusal to complete his contract stand on exactly the same footing as actions for not accepting goods: Laird v. Pim, 7 Mee. & W. 478; Noble v. Edwardes, L. R. 5 Ch. D. 378. Hence it was held that a railway company, after giving statutory notice of intention to take lands, is responsible for damage sustained by the owner if it fails to take the necessary steps for assessing the compensation: Morgan v. Metropolitan Railway Co., L. R. 3 C. P. 553; S. C., 37 L. J., N. S., C. P. 265. In one case the plaintiff in an action for refusal to complete the purchase of land seems to have recovered the whole purchase money: Hawkins v. Kemp, 3 East, 410. In another case there seems to have been an implication in favor of such recovery: Goodisson v. Nunn, 4 T. R. 761; and in Glazebrook v. Woodrow, 8 Id. 366, it was decided that no action for the purchase money could be brought by the vendor without averring that he had conveyed, or tendered a conveyance. But whatever doubt there may have been in the earlier cases of this kind, it is now decided that though the plaintiff or vendor is in no fault, and has done all his contract required of him, it is not the correct rule to allow him to have the land and its value too. The leading case on this subject is that of Laird v. Pim, 7 Mee. & W. 473, in which it was said by Parke, B., that the conveyance and the payment are to be contemporaneous acts. A tender of the conveyance, said he, is not sufficient; it must be executed before payment can be enforced. He illustrated this by showing that if two men agree, one that the other shall have his horse on

payment of ten pounds for him, no action lies for the money until the horse be delivered. He admitted that an action for damages could be sustained for breach of the contract; but denied that the vendor could recover the purchase money until after the execution of the conveyance. In the same case, Parke, B., said: “The measure of damages in an action of this nature is the injury sustained by the plaintiff by reason of the defendants not having performed their contract. The question is, How much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase money, in consequence of the non-performance of the contract? It is clear he cannot have the land and its value too."

It follows, therefore, that if plaintiff is not inconvenienced by the loss of the purchase money, or if the property does not fall in value, the vendor can recover nothing. He cannot contend for the amount of purchase money agreed on, with interest; but only for damages actually sustained by vendee's breach of the contract. In agreements for the purchase of land, a clause is often inserted for a deposit, and a forfeiture of that if the vendee or purchaser does not fully carry out his contract; but while the deposit may be declared forfeited as liquidated damages, the vendor may still go for damages at large, and is not confined to the deposit: Icely v. Grew, 6 Nev. & M. 467; Hinton v. Sparkes, 3 L. J. C. P. 161; S. C., 37 L. J., N. S., C. P. 81. In the absence of a stipulation to that effect, the deposit would not be forfeited; but where parties contract that the deposit money shall be forfeited if the purchaser fails to carry out his contract, no part of the deposit can be recovered back on the ground that the forfeiture was in the nature of a penalty, and the actual loss to the vendor was less than the amount of the deposit. It seems that the cases distinguishing between a penalty and liquidated damages do not apply to a pecuniary deposit, which is in reality not a pledge, but a payment in part of the purchase money. The result is, that if the seller seeks to recover damages beyond the amount of the deposit, he must give credit for the deposit which he has retained: See case last cited. This principle is applied in sales by auction, where the usual conditions of sale are that if the vendee fails to complete the purchase the vendor may sell and the vendee shall pay expenses of resale and make good the deficiency of price, if any: Ex parte Hunter, 6 Ves. 94. And the same principle will be applied in other cases, even without any express stipulation. Thus, where the purchaser declined to accept land on account of an objection to title, and the vendor sold again for a lower sum, it was held that he was entitled to recover as damages the difference between the price contracted for and that which he ultimately received: Noble v. Edwardes, L. R. 5 Ch. D. 378. In Ockenden v. Henly, El. Bl. & El. 493, S. C., 27 L. J., N. S., Q. B. 361, it was held that if a deposit is given on purchasing at auction, and the vendor subsequently resells and brings an action for the deficiency, that deposit is treated as part of the purchase money, and the vendor's recovery is diminished by that amount. This question was again considered in Essex v. Daniell, L. R. 10 C. P. 538, where one condition of the auction sale was that if the vendee failed to complete the sale the deposit money should be forfeited and the vendor should be at liberty to resell, the vendee to be liable for any deficiency between the first sale and the subsequent one, and for the expenses of the first sale. In that case there was no resale, and it was distinguished from Ockenden v. Henly, supra, on the ground that in the latter case there was a resale, and plaintiff claimed for the deficiency.

"Under ordinary circumstances," said the court in Essex v. Daniell, supra, "where the purchaser fails to complete, without any default on the part of

the vendor, the latter is entitled to recover all the expenses he has incurred in preparing for the sale, and also the loss incurred upon a resale, that is, the difference of price, if any. Here, by the conditions of sale, the deposit is absolutely forfeited upon the purchaser's default, and the vendor is entitled to recover the expenses he has incurred. If he clained, in addition, the difference between the sum bid at the first sale and that realized on a resale, then the case of Ockenden v. Henly, supra, would apply." Here, however, as there was no resale, the court held that the vendor was entitled to recover the expenses incurred by him in preparing for the abortive sale, and also to retain the deposit.

As to interest, it has been held that where the vendee in a contract for the purchase of real estate takes possession of the property as owner, without a conveyance and not having paid the purchase money, he is bound to pay interest, as the act of taking possession is an implied agreement to pay it: Fludyer v. Cocker, 12 Ves. 25. Where a promissory note is given for the price of land, and the consideration has not entirely failed, although no conveyance has been executed, the vendee must pay his note and resort to his remedy on the agreement, or go into equity for a specific performance: Moggridge v. Jones, 3 Camp. 38; S. C., 14 East, 486; Spiller v. Westlake, 2 Barn. & Adol. 155, 22 Eng. Coin. L. 73. Where the vendee refuses to perform his contract for the sale of land, the seller has two remedies at his command for redress: a legal one, and an equitable one. These are discussed in Noble v. Edwardes, L. R. 5 Ch. D. 378; Eastern Counties Railway Co. v. Hawkes, 5 H. L. Cas. 376; see infra. In conclusion, then, the English rule is this, that the measure of damages is the difference between the price fixed by the contract and the market value at the time of vendee's breach of the agreement; and the same principle is involved and the same rule applied in estimating the damages, whether the action is one for the breach of a parol agreement or one for the breach of a contract under seal: Marcus v. Smith, 17 U. C. C. P. 416, reviewing the cases. When the market value is unascertainable, and a serious loss and injury is proved, the court, acting on the principle that no wrong done is to remain without redress, awards substantial damages; but such damages must not be greater in amount than the amount the vendor would have been entitled to under the contract if it had been punctually carried out: In re Lafitte Claims, 23 Week. Rep. 379.

2. RULES IN UNITED STATES.-1. Vendor's Legal and Equitable Remedies. Where the vendor has offered to do all that the contract for the sale of land requires of him, and the vendee refuses to perform his contract for the purchase, it is well settled that the vendor may either resort to a suit in equity for specific performance, or bring an action at law for damages. The suit in equity is often troublesome and expensive, and the course at law may often be the shorter and more satisfactory one. The seller may not, however, be content with damages, in which case he may have specific performance and get his purchase money. He has the land which he does not want, and has not the money which he does want, and which by his agreement he ought to get. The inadequacy of the relief given in courts of law would thus be one reason why it is considered necessary to invoke the aid of a court of equity to enforce the specific performance of the contract. If the vendor be driven to his action at law, he retains the land, and can only recover the difference between the stipulated price and the price it would probably fetch if resold, together with incidental expenses and special damage. He is left with the estate on his hands, and will recover damages only according to the views of a jury: Eastern Counties Railway v. Ilawkes, 5 H. L. Cas. 360, 376, 377;