
    John Fletcher, Resp’t, v. Chauncey S. Butler, Impleaded, App’lt.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July, 1888.)
    
    1. Contract—Por sale of land—Performance of.
    Tile appellant made a written contract with the plaintiff and his wife for the sale of certain premises at a fixed price, containing the provision that the deed of the properly should be made to the plaintiff or to his wife whichever of them paid the purchase price. The purchase price was wholly paid by the plaintiff’s wife. Held, that the plaintiff could- not maintain any action based upon a breach of the contract because of the-failure of the appellant to convey the property to him, as the purchase-price was paid by the plaintiff’s wife.
    2. Same—Breach of—Measure of damages in the absence of fraud.
    
      Held, that assuming that there existed, by the terms of the contract, an obligation on the part of the appellant to convey to the plaintiff, the latter could, in the absence of fraud or misconduct on the part of the appellant, recover nothing exceeding nominal damages for a breach of the contract, except he had paid a part of the purchase price in which case he> could recover that amount with interest.
    3. Same—Breach of—Measure of damages in case of fraud.
    Held, that in case of fraud or misconduct on the part of the vendor -the-purchaser could recover any portion of the purchase price actually paid by him, with interest, and the amount by which the value of the land at the. breach of the contract exceeded the contract price.
    Appeal from a judgment of the Oneida county court, entered in Oneida county December 15, 1887, for $339.10’ damages and $86.43 costs. The action was tried before the-court without a jury. The case contains all the evidence.
    
      Wm. Kernan, for app’lt; H. C. Sholes, for resp’t.
   Martin, J.

In or about July, 1878, the defendant, Chauncey S. Buller, made a written contract with the plaintiff and the defendant Alice Fletcher, who is the plaintiff’s wife, for the sale of the premises described in the complaint, for the sum or price of $600., This contract was lost or destroyed, and therefore not presented on the trial. The defendant’s evidence tended to show that it contained a provision that the one who paid the purchase price, whether the plaintiff or his wife, should have the deed of the premises. This evidence was not disputed by the plaintiff.

The purchase price was wholly paid by Mrs. Fletcher. The defendant Butler gave her the deed. The money employed in making such payments was in part earned by Mrs. Fletcher in her own separate business or employment, and the remainder was given to her by their children. Some of the children who thus earned a portion of the money to make such payments had attained their majority, others had not. What proportion of the purchase price was derived from Mrs. Fletcher’s own earnings, or what portion was furnished by the children respectively, does not definitely appear, either from the evidence or findings, of the court. The plaintiff claimed that he had furnished some portion of the money that was used to pay for said premises, but the decision of the court wholly fails to show what portion, if any, was furnished by him.

The court, without any proof or finding that the plaintiff had paid any particular sum or portion of such purchase price, or that he had offered or tendered payment of any portion thereof, held and decided that the plaintiff was-entitled to a judgment for $300, and interest from October 12, 1885. The action was for' damages for the breach of the contract.

It it difficult to perceive upon what theory the court below held the plaintiff entitled to the damages awarded. If it be true that the contract contained the provision that the deed was to be given to the party paying the consideration, and it was paid by Mrs. Fletcher, to whom the deed was given, then it would seem quite obvious that the plaintiff could not recover in this action, as there was no breach of his contract by the defendant Butler.

But if that provision was not in the contract, still, it is equally difficult to discover how this judgment can be sustained. Upon what principle can the plaintiff recover the-amount awarded him in this action? If he has paid anything on this.contract the amount has not been ascertained, and there is certainly no evidence which would justify a finding that he had paid, or is entitled to the amount awarded. Where such a contract is broken by the vendor-without fraud or misconduct on his part, the purchaser can recover only nominal damages, unless he has paid part of the purchase price, in which case he can recover it back with interest. Conger v. Weaver, 20 N. Y., 140; Margraf v. Muir, 57 N. Y., 155; Cockcroft v. N. Y., & H. R. R. Co., 69 N. Y., 201; Nelson v. Heermans, 11 Wkly. Dig., 48. If the vendor is guilty of fraud or misconduct, then the purchaser can recover the amount paid by him, with interest, together with the difference between the contract price and the actual value of the land at the time of the breach. Bush v. Cole, 28 N. Y., 261; Pumpelly v. Phelps, 40 N. Y., 59; Timby v. Kinsey, 18 Hun, 255. If the former rule is applicable in this case, the judgment cannot be sustained, because there is no proof that the plaintiff paid the sum awarded; but on the contrary, the proof is that he paid nothing, or at most, a very small sum. If the latter rule applies, still the judgment cannot be sustained, as the court has found the value of the premises to be only $600, which was the contract price, and hence, the plaintiff could recover no more under the latter rule than under the former.

These considerations lead us to the conclusion that the learned county judge erred in awarding to the plaintiff the sum of $300, and interest; and that for such error the judgment appealed from should be reversed, with costs to abide the event.

Judgment of the county court reversed, and new trial granted with costs to abide the event.

Hardin, P. J., and Follett, J., concur.  