
    Lawrence J. Witsell vs. John S. Riggs.
    
      Case — Measure 'of Damages.
    
    Action on the case against a real-estate broker, to recover damages for an alleged breach of duty in not paying over to plaintiff or his agents the purchase-money, Confederate treasury notes, of a tract of land of plaintiff’s, which defendant had sold for him ; the money having been retained by defendant, without giving notice that he had received it, until it became valueless. The declaration contained no specific allegation of fraud or collusion, nor of special damages: — Held, that the measure of damages was the value of the currency at the time it was received by defendant, with interest thereon; verdict for a much larger amount set aside and new trial ordered.
    BEFORE DAWKINS, J., AT CHARLESTON, JANUARY TERM, 1867.
    The report of his Honor, the presiding J udge, is as follows:
    “This was an action on the case brought by the plaintiff against the defendant to recover damages for alleged negligence and mismanagement in the sale of a tract of land. Some time previous-to November, 1864, plaintiff, through his factors, Messrs. O’Hear, Eoper and Stoney, employed defendant to sell a tract of land for him, situated in Colleton District, for which he had been offered, previous to the war, $5,000. Subsequently plaintiff saw defendant, and limited the minimum price at $15,000, and plaintiff swore he gave defendant instruction when the land was sold to pay over the proceeds of the sale to his factors. The instruction was denied, undfer oath, by defendant. Both plaintiff and defendant were sworn.
    “ On the 9th of November, 1864, the land was sold by defendant for $16,300, and bid off by Mr. Loryea, who transferred his bid to Dr. Prince. The purchaser or his assignee employed John Philips, Esq., to examine the titles preparatory to the payment of the money; and on account of some difficulty in procuring the title-deeds, Mr. Philips delayed his approval until 6th February, 1865. The title was immediately drawn up for plaintiff to sign, and forwarded to him by defendant in a letter. The deed was returned executed in a day or two after sent, by plaintiff’s brother, to Charleston.
    “ On the 20th January, 1865, Dr. Prince paid to defendant the purchase-money and took a receipt, a copy of which, with the letter of defendant to plaintiff, of date 6th February, 1865, accompanies this report as a part thereof.
    “When the plaintiff closed his case, defendant’s counsel moved for a nonsuit on the ground taken in the notice of appeal, contending that an auctioneer’s duty and responsibility ended when he had effected a sale of the property. Conceding generally the fact to be so, yet, if he undertakes to do more, he will be bound by his contract, and must follow the instruction of his principal. The defendant was broker and auctioneer. What was the contract, whether there had been any breach of it, and, if so, what damages the plaintiff had sustained, I considered questions for the jury, and refused the motion. The defendant, in the receipt signed by him on the 20th January, 1865, for the purchase-money, styles himself “Attorney for L. M. Witsell,” and I hardly think he can contend his duty ended when he sold the property.
    “ It was zealously and forcibly argued by, plaintiff’s counsel that the facts proved made a case of collusion between the defendant and the purchaser to fraudulently deprive the plaintiff of his property, &c. I charged the jury .if the defendant was unmindful of the trust reposed in him, and had fraudulently colluded or combined with the purchaser, to the injury of the plaintiff, he ought to be held responsible for whatever damages the plaintiff had sustained thereby. I repeated this part of my charge, in order that I might be clearly understood by the jury as well as the counsel. I suppose it most likely it was on this ground the jury found their verdict, for in no other view of the case submitted could they have found the verdict they did. I left the whole question to the jury, instructing them that it belonged to them to decide it, as well as the amount of damages.
    “ I said to the jury that the purchaser was not bound to pay the purchase-money until the title was made out and tendered, and that he was entitled to sufficient time to have them examined. That the sale was made for Confederate treasury notes, which the • plaintiff was bound to accept, provided defendant used proper diligence in giving plaintiff notice o'f payment after 6th of February, when the money was worth something; but if, for the want of notice, defendant kept the money until it became valueless, he should be held responsible for its value when plaintiff executed the title, which was about one hundred for one in gold. But if the defendant had not negligently omitted to give the notice, and discharged to the best of his ability the trust reposed in him, the loss must fall on the plaintiff; and they should find for the defendant. I endeavored to present to the j ury the facts bearing pn each proposition, without indicating any opinion; and when I closed my charge, I inquired of the counsel if there was any other point on which either of them desired the jury to be instructed. They responded promptly in the negative.
    “ The jury found a verdict for the plaintiff for $2,500.”
    COPT OP RECEIPT.
    ' Received, Charleston, January 20, 1865, of Dr. George Prince, the sum of sixteen thousand three hundred dollars, in Confederate treasury notes, which stím is the amount of the purchase of L. M. Witsell’s plantation, sold by me at auction on the 9th day of November, 1864; and I agree to refund the said amount in currency should the title to said plantation, which is now undergoing investigation, prove not good, and to use all efforts to have the conveyance signed by the said L. M. Witsell; but should I fail to obtain his signature to said title-deed, and- his acceptance of the proceeds of said sale, then in that case I am to return the amount this day received, say sixteen thousand three hundred dollars, in the same currency I now receive, without interest.
    (Signed) JOHN S. BIGGS,
    
      Attorney for L. M. Witsell.
    
    COPT OE LETTER.
    Charleston, Feb. 6th, 1865.
    
      L. J. Witsell, Fsq., Walterboro’, Oolleton District:
    
    Dear Sir : Herewith please find enclosed title of plantation sold by me on your account for execution in the presence of two witnesses.
    I do not know whether there is a Mrs. Witsell; but, if so, the renunciation of dower must be made by her before a magistrate or notary public.
    The proof of your own signature must also be made by one of the witnesses thereto before a magistrate or notary public, and then the title is complete, and you will oblige by returning it to me immediately.
    I am, dear sir, •
    Yours, respectfully,
    J. S. BIGGS, per J. C. Chamberlain.
    Copy sent by mail enclosing deed for signature, as dated.
    J. C. Chamberlain.
    The defendant appealed, and now moved this Court for a nonsuit, upon the ground:
    Because, even admitting the plaintiff's allegation that the defendant was employed by him as an auctioneer to sell his plantation in Colleton District, and with verbal instructions to pay over tbe proceeds to Messrs. O’Hear, Roper and Stoney, tbis imposed no legal obligation on the said defendant as an auctioneer, and was a mere notification that tbey were tbe parties to receive tbe money when called for, and there was no legal liability on bis part to seek out and effect a settlement with the parties, nor any responsibility in damages in case of failure so to do.
    And failing in that, then for a new trial, upon the grounds :
    1. 'Because tbe proof was uncontradicted that tbe Confederate currency was deposited in bank by the defendant as received, and it was tbe duty of the plaintiff) or of O’Hear, Roper and Stoney, if tbey were tbe parties to whom it was to be paid, to have applied for tbe same ; and if, by their failure so to do, tbe saiS currency, through tbe casualties of war or otherwise, has become depreciated and valueless, the defendant cannot be held responsible therefor, and bis Honor erred in charging tbe contrary thereof to be the law.
    2. Because bis Honor erred in charging tbe jury that the non-notification by tbe defendant to the plaintiff of the receipt of tbe money by him was negligence and tbe subject of damage ; whereas it is respectfully submitted that tbis was not in law a culpable negligence, or one from which any damage could result, as the execution by tbe plaintiff of bis title-deed after tbe 6th day of February, 1865, and its delivery to tbe defendant without further instructions, was a sanction and authority by him of his readiness to receive in payment therefor Confederate currency as of that date, and its previous receipt by tbe defendant as auctioneer could be in no view either a matter of negligence, injury, or damage to tbe plaintiff.
    8. Because, although tbe Confederate currency was paid by the purchaser on the 20th January, 1865, it was received by the defendant in the nature of a conditional deposit, and it was neither the money of the plaintiff, nor could the defendant have either remitted it to or paid it over to him until the title was approved and executed, and this was required by Mr. Philips, the attorney of the purchaser, who had been furnished by the plaintiff with the papers necessary to make examination of the title.
    4. Because there was no proof whatever that the alleged inducement to the plaintiff to sell his plantation was ever communicated to or came to the knowledge of the defendant, nor was there any evidence of the value of the plantation proposed to be purchased in lieu thereof, and therefore this could not legally form a ground of recovery or element of damage. <
    5. Because there was an entire failure of evidence to show that in February, 1865, when he made and sent the title to the defendant, and thereby confirmed and authorized the consummation of the sale, and the receipt of the purchase-money in Confederate currency as of that period, that the said Confederate currency, if received by him, or O’Hear, Boper and Stoney, could have been applied either to the purchase of another plantation or any other purpose.
    6. Because the defendant cannot be held liable for the nonpayment of the Confederate currency to O’Hear, Boper and Stoney, as the plaintiff himself, neither by his own testimony or any proof, either alleged or substantiated that he ever informed O’Hear, Boper and Stoney that they were to receive the money, or ever instructed them in relation thereto, or ever authorized them to apply for it.
    7. Because, under any circumstances of the case, the only damage which could be recovered by the plaintiff was the proportion of value which Confederate treasury notes bore ■to gold, wbicb was proved, and tbeir verdict in excess of that amount was" conjectural, capricious, and excessive.
    8. Because the title-deed to tbe plantation was not received by tbe defendant from the plaintiff until four days before tbe evacuation of tbe city of Charleston by the Confederate army; and even bad tbe money been then paid over to O’Hear, Roper and Stoney, it could have been of no avail, inasmuch as it was proved that tbe plaintiff was absent in Walterboro’, Colleton District, and it was impracticable for tbe said O’Hear, Roper and Stoney to have remitted tbe Confederate .currency to him, even if they bad been so directed or bad been in Charleston to receive it, of wbicb there is no proof.
    9. Because tbe evidence, so far from showing any negligence on tbe part of tbe defendant, establishes tbe fact that be used every diligence in the discharge of bis duty; and inasmuch as tbe verdict is wholly against tbe said evidence and the law, it should be set aside, as, if allowed to stand, it will operate grievously and wrongfully against tbe defendant, who is entitled, under all the circumstances, to tbe re-examination of bis case.
    
      McBeth and Buist, for appellants.
    
      Simonton and Barker, contra.
   Tbe opinion of tbe Court was delivered by

Wardlaw, J.

There are three counts, all alleging tbe undertaking of tbe defendant as a real-estate broker, for compensation to be retained by commissions at tbe usual rate, to sell a plantation of tbe plaintiff’s for Confederate currency ; and all in effect claiming damages for tbe breach of bis duty to sell with care and diligence, and promptly to collect and pay over the proceeds. The first alleges his delay of collection and payment until the currency became greatly depreciated in value, whereby the plaintiff lost the opportunity of investing the proceeds, and they became worthless; and further, that the defendant has not as yet rendered a just account of the sale and its proceeds, and thereby the plantation and its value have been wholly lost to the plaintiff. The second alleges the defendant’s undertaking to pay the proceeds of sale to Messrs. O’Hear, Eoper and Stoney, plaintiff’s factors, — his default of diligence and promptness in collecting, and his neglect to pay to the said factors, — whereby the proceeds of sale have been wholly lost to the plaintiff. The third alleges sale and such carelessness, negligence, improper conduct, and breach of duty on the part of the defendant, that the proceeds were lost to the plaintiff, — were not paid to him or his agent, — and were not applied to the purchase of other land or to the payment of debts due by the plaintiff, as otherwise they might and would have been, and the plaintiff has lost the value of his plantation.

Each of the counts contains in the breach the words, “ contriving and intending craftily and subtly to deceive and defraud the plaintiff;” but this is mere superfluous verbiage, often introduced into the conclusion of a common money count in a declaration in assumpsit. Such words do not of themselves amount to a specific allegation of fraud or collusion ; and such allegation is not to be found in the declaration in this case.

The proof shows that a fair sale was made; that delay, so explained by circumstances that it was not complained of in argument here, topic place from November 9, 1864, till January 20, 1865; that on the latter day the purchase-money, in Confederate treasury notes, was paid by the purchaser to the defendant, and a receipt was signed by the defendant, whereby he bound himself to refund to the purchaser'in certain events, the happening of either of which would, without any such special receipt, have subjected him to the obligation of refunding ; that without subsequent delay a title-deed from the plaintiff'to the purchaser was obtained, and about the 10th of February, 1865, was in the hands of the defendant, to be delivered to the purchaser. At that time the money was of some value, and it did not become altogether worthless until some time in May following. It should have been paid to the plaintiff or his agent, or at least, after such delay following the sale, notice should have been given by the defendant that it was in his hands. The defendant’s letter of February 6, 1865, sending the deed to be executed by the plaintiff, made no mention of the money then held by him; nothing appears to have been said about it, when the plaintiff’s brother brought to town the deed executed, and it is yet in bank utterly valueless.

It appears to this Court that the defendant might well have been made answerable for the natural and proximate consequences of his inattention to the duty of giving such notice, as might have saved the plaintiff from further loss, after he had completed the sale by sending the deed to be delivered to the purchaser. ' Of these consequences there is a well-established measure — the value of Confederate currency about February 10, 1865, with interest thereon. The speculative damages which have been spoken of — investment in land or payment of debts prevented — cannot be taken into consideration ; for there is no proper allegation of special damages, no particular proof of such, and no authority for taking them into the estimate. The verdict of $2,500 is, by the plaintiff’s argument, imputed to fraud on the part of the defendant: but, as we have said, there is no proper allegation of fraud. The case, as presented by the proof connected with the allegations, although it is an action on the case for breach of duty, is just as if it had been an action of assumpsit upon the contract implied from the duty; and the discretionary range which fraud and malice sometimes give to a jury in actions sounding merely in damages, can no more be allowed under one form of action than under another, in a case where there is a certain measure of compensation, and vindictive damages are unsuitable to the proof connected with the allegations.

A new trial is ordered.

Dunkin, C. J., and Inglis, A. J., concurred.

Motion granted.  