Lister v. Batson , 6 Kan. 420 ( 1870 )

The opinion of the court was delivered by

Saeford, J.:

This was an action brought to recover damages for the breach of a parol agreement for the sale of land. By the terms of the agreement, as appears from the pleadings and the proofs, Lister was to convey to Batson certain described lands upon an agreed consideration, and at a specified time, to-wit, on the next day but one after the making thereof. He reserved the right to occupy the dwelling situate on the premises for the period of four weeks, and to remove certain trees .and shrubs there planted and growing. Nothing was paid on account of the purchase' money, at the time or since, but Batson entered upon a portion of the premises and performed some labor, and made preparation for making some improvements thereon. It further appears that the land concerning which the agreement was made, was the homestead of Lister, and that by reason of the refusal of his wife to consent to the sale thereof he was unable to carry out his said agreement; all of which was brought to the notice of the purchaser on the next day 'after the one on which the deed was to have been made, 'and who on the next day was forbidden the premises of which the plaintiff in error still retains the possession. '

Upon the trial below, which resulted in a verdict and judgment for the sum of two hundred dollars damages as .against the vendor,\and in favor of the purchaser, the court instructed the jury that — “ The measure of damages “ in such case is the difference between the price of the “ land as agreed upon, and the amount it was worth at “ the time the conveyance was contracted to be made.”

1. Damages-breach of paroi contract for sale °fland. 2,_Incases of initial posses-This was duly excepted to by the plaintiff in error as being erroneous; 'and it is insisted upon here as ground for the reversal of the judgment. In .view of the authorities bearing upon the question thus raised, we are of the opinion that the point is well taken. The . . current of such authorities seems to establish proposition that in case of the refusal of a vendor on a parol agreement to sell land to fulfill his contract, and when the vendee has -had possession but the purchase price has not been paid at all, and a suit is brought for damages, such vendor is only to be charged with the labor done upon such land and improvements made thereon by such vendee. In other words, the vendee in such case is entitled to compensation only for the expenditure of money and labor bestowed upon the land of which he is denied any benefit by the fault of the vendor. This it will be seen is held to be the rule in cases where possession of the land has been in yen(jee'. anc[ most certainly it ought not to be extended so as to allow increased damages in a case like the one at bar, where the possession of the vendee was at most only partial: 14 B. Monroe, 364; Hilliard on Vendors, 161, 163. It is also to be remembered in this connection that the agreement in this case was made with reference to such property, that under the constitution and laws of the State it could not be enforced in full, without the consent of the wife of the vendor, and this is shown to have been withheld: Sec. 9, Art. 15, Constitution. But it does not however, follow that the party injured by the vendor’s undertaking what he could not perform could not obtain redress to the extent of actual compensation in accordance with the rule above laid down, by a resort to a suit at law for damages.

Several questions are raised and argued with great ability on the part of the plaintiff in error, but inasmuch as the case must go back on the point already noticed, it will not be necessary to discuss or to decide them. It may not be out of the way, however, to remark, that we entertain very grave doubts as to whether the record here shows that a prima facie case was even made out by the plaintiff.

The judgment is reversed, and the cause remanded for further proceedings.

All the Justices concurring.