
    CARTER v. REAUME.
    1. Vendor and Purchaser — Damages — Land Contract— Breach.
    In an action on a land contract brought by the vendor without a prior tender of a deed, the measure of damages is the difference between the purchase price payable under the contract and the value of the land at the time of the breach.
    2. Same — Nominal Damages — Saving Questions for Review.
    A judgment for nominal damages will not be awarded on error in a case where the question was not presented to the trial court.
    3. Same — Taxes Paid — Statute of Limitations.
    Separate items of taxes paid more than ten years prior to the commencement of the action, except in so far as they might be included in the total sum due, under a clause providing that they might be added thereto, are barred by the statute of limitations and are not recoverable as a part of the contract price unless a deed was tendered.
    Error to Wayne; Brooke, J.
    Submitted October 20, 1909.
    (Docket No. 40.)
    Decided December 10, 1909.
    Debt by Richard Carter against Frank C. Reaume. James H. Cody, Ralph B. Wilkinson, and others, for the amount of a land contract. A judgment for defendants on a verdict directed by the court is reviewed by plaintiff on writ of error.
    Affirmed.
    
      James H. Pound, for appellant,
    
      Navin, Sheahan & Bourke, for appellee Cody.
    
      Edwin Henderson (Wilkinson & Younglove, of counsel), for appellee Wilkinson.
   Montgomery, J.

This is an action of debt to recover an amount claimed to be due upon a land contract entered into between Martha F. Stewart and the three defendants Reaume, Lindsley, and Cody, which, contract was afterwards assigned to defendants Radcliffe and Wilkinson, who assumed and agreed to carry out the terms; the original contracting parties not being released. One thousand dollars was paid upon the purchase price on the execution of the contract, and interest was kept up for some four years. The entire consideration reserved in the contract became due on the 18th of April, 1897. The contract was assigned by Martha F. Stewart to S. Wight-man Stewart, and the property conveyed to him, and in 1900 the contract was assigned by S. Wightman Stewart to the plaintiff as security for $3,700. The plaintiff or his assignor has paid all the taxes accruing on the contract, both before and since the 18th of April, 1897.

This action was commenced just one day less than 10 years from the time the contract became due. In the court below the plaintiff claimed the sum of $13,303.12, being the entire amount due upon the contract, with interest thereon, and taxes paid. No tender of a deed was made to the defendants, and there was no direct proof that the plaintiff was in a position to tender a deed. The circuit judge was of the opinion that, under these circumstances, the plaintiff had not shown a right to recover, and directed a verdict for the defendants, basing his verdict upon the case of Stewart v. McLaughlin’s Estate, 126 Mich. 1 (85 N. W. 266, 87 N. W. 218). The court stated:

The plaintiff’s claim was that the measure of damages was the whole amount due under the contract price, plus interest and taxes. No testimony was offered at the trial tending to show the value of the land to the vendor at the time the contract was broken.”

The court held that the proper measure of damages would be the difference between the amount reserved in the contract and the value of the land at the time the contract was broken, and that, as there was no evidence on this point, the plaintiff could not recover. In this court the contention is made that at least nominal damages should have been allowed; but it is sufficient to say that no such contention was made in the court below, and that this point is also answered by Stewart v. McLaughlin’s Estate, supra.

It is also claimed that the plaintiff should in any event be entitled to recover the amount paid for taxes. It was not claimed in the court below, so far as the record shows, that a recovery for these payments as distinct payments could be had; but we think a further answer to this claim is that, as to the taxes paid prior to maturity of the contract, the statute of limitations is pleaded and would be a complete answer to an action to recover for these separate items. The provision of the contract is that, upon failure of the purchaser to pay the taxes and insurance, the same may be added to the amount due on the contract payable forthwith, with interest at the rate of 8 per cent, per annum, and shall be treated as a part of the money payable under the contract. It is manifest that on the 18th of April, 1897, this contract matured, and all sums whatever unpaid which constituted a part of the contract price were due. The rights of the parties were then fixed. The plaintiff or his assignor were entitled to maintain an action in debt upon condition that a tender of conveyance should be made. So, when this action was brought, there was no obligation to pay any particular sum of money under a covenant which was independent of the obligation of the plaintiff to convey. The fact that some of the consideration consisted of taxes paid by the plaintiff or his assignor in no way affects this question. The amount so paid became a part of the purchase price or money payable under the contract. The plaintiff had the right to demand payment of all on this condition. By the express terms of the contract, the money paid by him for taxes became a part of the contract price. He sues in debt. He could hardly be permitted to recover piecemeal when all was due. The condition upon which he could recover what was due was, under the authority of Stewart v. Mc Laughlin’s Estate, that he should first tender a deed. Had the action been in assumpsit, or had there been evidence to show that land, the title to which is in the plaintiff, is of less value than the contract price remaining unpaid, there might have been some basis for a judgment; but on this record there is no such basis.

The judgment is affirmed.

Grant, Ostrander, Moore, and McAlvay, JJ., concurred.  