
    
      Wilson v. Spencer.
    August, 1840,
    Lewisburg.
    (Absent Gaujsll and Pabktcr, J.)
    Bonds — Condition to Convey Land — What Is No Discharge of Such Condition. — In an action against a surety, on a bond with condition that the principal should convey a tract of land to the plaintiff, the defendant pleaded, that the principal had conveyed the land to B. W. and the defendant, and the plaintiff afterwards agreed with said B. W. and the def endant, that if they would convey to J. S. the said land (subject to a certain deed of trust given by the principal) he the plaintiff would accept of such conveyance as a full discharge of the bond; and the plea averred that the said B, W. and the defendant did afterwards convey to S. the said land, and the plaintiff received and accepted the said conveyance as a full discharge of the bond; Hudd, the plea is naught.
    Appellate Practice — Rejecting of Evidence by Lower Court. — Where the court below has rejected evidence offered in support of a plea which it had received, if an appellate court shall regard the plea as naught, it will, on this ground alone, hold that there was no error in rej ecting the evidence, without considering the other objections to it.
    Contract to Convey Land — Breach—Measure of Damages. — Though in general. Cor the breach of an executory contract to convey land, the vendee is not entitled to more damages than the purchase money he has actually paid, and interest thereon, (Thompson’s ex’or v, Guthrie's adm’r, 9 Leigh 101,) yet this rule will not be applied where the fraudulent conduct of the vendor makes it unreasonable to limit the vendee to that measure of damages. If, for example, a vendor who has the title in him at the time of sale, shall, after his contract, disable himself to perform it by conveying the land to another, he will be held liable for the value at the time of the breach; and interest may be allowed on such value from that lime.
    Bonds — Collateral Condition — Judgment Immaterial Error. — In debt on a bond with collateral condition, the jury who try the issues lind the same for the plain till', and assess his damages, and allow interest thereon; and then judgment is entered for the damages so assessed, with interest and costs, instead of "being- entered for the penalty of the bond and costs, to be discharged by the damages, interests and costs. Held, though the judgment is not entered in proper form, yet the error in the form producing no injury to the defendant, the judgment will not be reversed therefor. Accord. Pate v. Spotts, 6 Munf. 394.
    On the 10th of August 1816, Stephen R. Wilson and John Wilson jun’r, of the county of Wood and state of ""Virginia, executed a joint and several obligation to William Spencer in the sum of 4000 dollars, with a condition in the following words :
    “The condition of the above obligation is such, that whereas the above bound Stephen R. Wilson agrees to convey to the said William Spencer, by a good and sufficient deed in fee simple, clear of all incumbrances, all that tract or parcel of land lying and being in the said county of Wood and state aforesaid, situate adjoining and between the lands of Ichabod C. Griffin and Joseph Cook, containing 150 acres more or less, it being the same tract of land heretofore conveyed to the said John Wilson junior by Joseph Spencer, and conveyed by the said John Wilson junior to the said Stephen R. Wilson (reference being had to the said conveyances will more fully and at large appear) with these reservations, to wit: when the said William Spencer delivers to the said Stephen R. Wilson, his heirs or assigns, an article of agreement entered into between the said Stephen R. Wilson and William Smith, formerly of the city of Baltimore but since deceased, which said article of agreement was transferred to Joseph Spencer ; and the said William Spencer is to have the said article of agreement transferred to the said Stephen R. Wilson, his heirs or assigns, and the same to be delivered by the said William Spencer, his heirs &c. within 60 days from this date ; also two obligations given by the said Stephen R. Wilson to the aforesaid William Smith in the month of November 1803, for the payment of between 11000 and 12000 dollars, to be discharged and be delivered to the said Stephen R. Wilson before the said Stephen R. Wilson makes the aforesaid conveyance: Now if the said Stephen R. Wilson well and truly complies with the aforesaid condition on his part, then this obligation to be void, else to be and remain in full force.”
    Upon this obligation, Spencer brought an action of debt against John Wilson junior in the circuit court of Harrison. The time of commencing this action did not ^appear by the record, but the declaration was filed at July rules 1832. The declaration demanded the sum of 4000 dollars, described the obligation without setting forth the condition, and alleged the nonpayment of that sum, to the damage of the plaintiff 4000 dollars.
    The defendant craved oyer of the writing obligatory and of the condition thereof, and pleaded that the said Stephen R. Wilson had well and truly performed all the conditions of the said writing obligatory.
    The plaintiff replied, that after the making and delivery of the writing obligatory and condition, and within sixty days after its date, to wit, on the 10th of September 1816, “the said William caused and procured the said Joseph Spencer to transfer in writing, to the said Stephen, the article of agreement entered into between the said Stephen and the said William Smith of the city of Baltimore, mentioned in the condition, which said article of agreement he the said William, on the day and year last aforesaid, had ready to deliver to the said Stephen, and from thence hitherto hath been, and still is, ready and willing to deliver the same to the said Stephen, and would have delivered the same to him within the 60 days, but the said Stephen, before the said 10th day of September 1816, departed from his place of residence in Wood county, Virginia, and went out and from the commonwealth of Virginia, and has from thence continually until the present time remained out of this commonwealth, in some distant state or territory of the United States, and by reason of the absence of the said Stephen as aforesaid, he the said William could not deliver the said agreement to the said Stephen within the said 60 days, or at any time since ; which said agreement he the said William now brings here into court, ready to be delivered to the said Stephen.” The replication further alleged, that after the making and delivery of the said writing obligatory and condition, the said William Smith departed this- life in the city of Baltimore *in the state of Maryland, having first made his will, wherein Robert Smith was appointed executor, and the said Robert Smith duly qualified as such in the state of Maryland aforesaid; and after he had so qualified, and before the institution of this suit, the said William Spencer caused to be paid to the said Robert Smith, executor as aforesaid, the amount due from the said Stephen to the said William Smith upon the two obligations mentioned in the said condition, and on the 4th of February 1830 the said Robert Smith, executor as aforesaid, delivered the said two obligations to the said William, and by indenture under his hand and seal released and discharged the said Stephen of and from all liability upon the said two obligations ; “which indenture of release he the said William here produces to the court. And the said William Spencer saith, he hath discharged the said two obligations in manner aforesaid, and from the said 4th day of February 1830, continually until the present time, hath been ready and willing, and still is ready and willing, to deliver to the said Stephen the two obligations aforesaid, but the said Stephen, by absenting himself from this commonwealth as aforesaid, has prevented the said William from delivering the same to him; which two obligations the said William here brings into court (discharged as aforesaid) ready to be delivered to the said Stephen. And so the said William saith that he has fully performed and fulfilled all and singular the conditions of the said condition, to be by him performed in manner and form aforesaid. Yet the said Stephen hath not yet complied with or performed the condition to be by him performed as aforesaid, but so to do failed and neglected in this, that the said Stephen hath not conveyed to the said William Spencer the tract of land in the said condition mentioned, but so to do hath hitherto wholly failed and neglected.”
    The defendant rejoined, that the said Stephen did not depart from and go out of this commonwealth within 60 days after the date of said writing obligatory.
    ^Afterwards the defendant offered two additional pleas. By one of them he pleaded, that Stephen R. Wilson had, by good and sufficient deed, bargained, sold and conveyed said tract of land, in the condition of the said writing obligatory described, to a certain Benjamin Wilson jun’r and him the said defendant, and the title being so as aforesaid in the said Wilson and said defendant, the plaintiff afterwards, to wit, on the 10th of July 1816, agreed with said defendant and said Benjamin, that if they the said John and Benjamin would convey to a certain Joseph Spencer the said tract of land (subject to a certain deed of trust given by said Stephen R. Wilson to John G. Harness to secure a debt from said Stephen to a certain G. Harness) he the said plaintiff would accept of such conveyance from said Benjamin and John, as a full discharge of the writing obligatory on the part of the said John : and then he averred that the said Benjamin and John did, on the-day of --1817, by a deed duly executed and delivered, convey to the said Joseph Spencer said tract of land, which conveyance, so as aforesaid made and delivered by said Benjamin and John, the plaintiff then and there received and accepted as a full discharge of and from said obligation.
    By the other plea, the defendant pleaded that the plaintiff, after the execution of said writing obligatory, left the commonwealth, having previously thereto deposited said writing obligatory with a certain Joseph Spencer, whom the plaintiff then and there authorized and instructed to receive, from a certain Benjamin Wilson and the defendant, a conveyance to the said Joseph for the said land in the said condition described, as and for a full satisfaction and discharge, on the part of the said John, of all liability for or on account of said writing obligatory : and then he averred that afterwards, to wit, on the-day of -1817, during the absence of said William as aforesaid, and while said Joseph was*in possession of said bond, authorized as aforesaid, the said Benjamin and John did, by deed of bargain and sale, duly signed, sealed and delivered, convey to said Joseph said tract of land in the condition of said writing obligatory described, who then and there, in pursuance of the authority so as aforesaid given, and while said bond was so as aforesaid in his possession, accepted and received said deed as and for a full satisfaction and discharge, on the part of said John, of all liability for and on account of said writing obligatory.
    To the filing of the second of these pleas the plaintiff objected, but the court overruled the objection ; and thereupon both of the pleas being filed, the plaintiff replied generally thereto, and issues were joined.
    At the trial, the defendant offered to prove by witnesses, verbal or unwritten authority of Joseph Spencer to receive and accept, on behalf of the plaintiff, a deed to him the said Joseph, in discharge of said covenant so entered into by the defendant; and also offered to read in evidence a writing in the words and figures following:
    “ Memorandum of agreement between Joseph Spencer of Wood county, Virginia, and John Wilson jr. and Benjamin Wilson jr. of Harrison county and state aforesaid, wit-nesseth that the said John and Benjamin agree to convey to the said Joseph all that tract of land which was heretofore conveyed by Stephen R. Wilson to the said John and Benjamin, described situate on the Ohio river and in Wood county, known by the name of the Mill Hots, containing 150 acres, more or less, adjoining" lands of Griffin and Cook ; subject to a deed of trust given by the said Stephen R. Wilson to John G. Harness, to secure a certain debt due from said Stephen to George Harness : and the said Joseph, on his part, agrees to release the said John from all liability to one William Spencer, who holds a certain title bond conditioned that the said Stephen shall convey the aforesaid land to the said William, *wherein the said John Wilson jr. is security : though it is expressly understood by the parties, that the said Joseph does not in any wise release the said Stephen from the aforesaid recited bond any further than that he has the title, and still will or wishes to hold the said Stephen liable for the incumbrance aforesaid. In testimony whereof we have hereunto interchangeably set our hands and affixed our seals this 16th day of July 1817.
    Joseph Spencer [Seal.]
    J. Wilson jr. [Seal.]”
    “Witness, Isaac Morris.”
    To the introduction of which evidence of witnesses to prove the facts aforesaid, and said memorandum in writing, the plaintiff objected.
    The jury found a verdict for the plaintiff, and assessed his damages to 1950 dollars, with legal interest thereon from the 4th day of February 1830 till paid.
    The defendant moved the court to set aside the verdict and grant a new trial, for the following reasons: 1. Because there was no proof of the actual consideration paid, and the damages should therefore have been nominal. 2. Because there should have been proof of a demand from the defendant, or notice of a demand to him, before suit brought. 3. Because interest is allowed from the time of the breach, instead of from the institution of the suit. 4. Because interest ought not to have been allowed by the jury.
    “ The court was of opinion that it was not necessary the actual consideration paid by the plaintiff should be proved by him ; and as the consideration was not proved by the defendant, and as the plaintiff under his contract was entitled to the land, he has a right to recover the value thereof at the time when he could have required the conveyance. The court was also of opinion that demand or notice to the defendant was unnecessary. *The principal, upon whom the specific execution of the contract devolved, was, as appears by the pleadings and the evidence, absent from the commonwealth in parts unknown, at the time when the plaintiff had a right to call for the execution of the contract, and he has continued to be so absent : this constitutes a sufficient excuse for a failure to give notice to the principal. The court was also of opinion that it was proper for the jury in this case to allow interest, and that the period from which interest was allowed was the true time. The court therefore overruled the motion for ,a new trial for the above causes. To which opinion of the court the defendant excepted.”
    The defendant also moved the court for a new trial because the damages found by the jury were excessive. The plaintiff proved by several witnesses that the land in questioned was in their opinion worth, at the time of the breach laid in the declaration, from IS to 20 dollars per acre. The defendant proved by one witness, who had resided on the land, that it was worth from 10 to 15 dollars per acre; and also proved that about the same time a tract of land in the same neighbourhood, of equal quality, was sold at a judicial sale, on a credit of six, twelve and eighteen months, for about 7 dollars per acre. The court considered that the jury were fairly warranted by the evidence in the value at which they rated the land, and although it might be of opinion that the valuation of the jury was too high, yet it considered that this constituted no sufficient ground for a new trial. To which opinion the defendant excepted.
    The defendant also moved for a new trial on the ground of surprise, and filed in support of the motion the following affidavit : “ Spencer v. Wilson. The defendant John Wilson jun’r this day made oath before me, a justice of the peace for said county, that when the case aforesaid was called for trial, he had heard it reported that William Spencer, the plaintiff in said action, *had purchased said land in the proceedings mentioned from á man named Harness, who had acquired the same under a deed of trust. Affiant supposed the price at which said land was so as aforesaid purchased would have been known to David B. Spencer, a witness for the plaintiff, and, as affiant believes, his agent in the management of said suit. The said David, besides his attention to said suit for some years past, lives perhaps with — certainly near the plaintiff, and said tract of land. Affiant farther shews that it became material, as he believes, in the course of the trial, to ascertain the price at which the plaintiff had purchased said land of said Harness. To the surprise and astonishment of affiant, said David B. Spencer, when examined as to that point, though he stated he knew his brother had purchased, denied that he knew at what price. And affiant farther shews that on yesterday he learned that the price to be paid by said plaintiff was 1500 dollars, equal to 10 dollars per acre, for said land ; that the purchase of the plaintiff from said Harness was made after the alleged breach of the covenant on the part of said Stephen R. Wilson, that is, since February 1830 ; and that, at the time of the trial, one of the plaintiff’s witnesses (Shelton) was on his way to the residence of the said Harness, to pay him a large amount of the purchase money. This information affiant for the first time obtained on yesterday and he is satisfied, if the truth had been known, and the jury had understood that the plaintiff had, "within a few years, purchased the land for 10 dollars per acre, or about that sum, at a time when, as affiant believes, lands have greatly advanced in price in that quarter of the country, they would never have found a verdict estimating said land at 13 dollars per acre.”
    The court, being of opinion that the facts stated in this affidavit constituted no sufficient ground for a new trial, overruled the motion ; and the defendant excepted to the opinion.
    
      *Or the 25th of May 1835, judgment was rendered for the plaintiff, for 1950' dollars the damages assessed by the jury, with legal interest thereon from the 4th of February 1830 till paid, and the costs.
    To this judgment a supersedeas was awarded.
    The cause was argued in this court by Johnson for the plaintiff in error, and Wm. A. Harrison and Price for the defendant in error. In the printed statement of the former, the following errors were assigned:
    1. No material issue is joined on the plea of conditions performed : the point on which issue is taken being wholly immaterial.
    2. The court erred in rejecting the evidence of a parol authority to Joseph Spencer to accept a deed in satisfaction of the obligation on the part of the defendant.
    3. The court ought to have awarded a new trial, on account of the error of the jury in fixing the criterion of damages, and the time from which interest was to be allowed.
    ■ 4. The judgment, under the act of assembly and by the common law, should have been for the penalty, to be discharged by the damages.
    5. The plaintiff has averred no damage in the declaration by reason of the breach, and therefore can recover none.
    Upon the argument, the counsel for the plaintiff in error waived the first and fifth errors assigned, but insisted on the second, third and fourth.
    
      
      Bonds — Discharge.—In Moore v. Johnson, 34 W. Va. 679, 12 S. E. Rep. 921, it is said, the old common law was, that a specialty could not be discharged by a parol undertaking, citing Wilson v. Spencer, 11 Leigh 273. See monographic note on “Bonds” appended to Ward v. Churn, 18 Gratt. 801.
    
    
      
       Chancery Practice — Irregular Proceedings — Correct Result —See, citing the principal case, Max Meadows, etc., Co. v. McGavock, 98 Va. 416, 36 S. E. Rep. 490. See also, foot-note to Beery v. Homan, 8 Gratt. 48.
    
   TUCKER, P.

The plaintiff in error having waived, and very properly, the 1st a-nd 5th errors assigned in his statement, the first question to be considered is the propriety of rejecting the parol evidence offered by him in support of his third and fourth plea. And it has been contended that, in the consideration of this question, *it is unimportant to consider whether the pleas themselves were good or not. This would indeed have been an argumentum ad hominem in the court below, to which it might plausibly have been said, “You have admitted the pleas as good, and why then should you reject the evidence to sustain them?” But in this court it is otherwise. If the inferior court has admitted an improper plea, notwithstanding the objections of the plaintiff, and has afterwards rejected the evidence in support of it, it has but remedied the first error by the commission of the second ; and this court could with no propriety reverse the last act, and thereby resuscitate "the former error to the plaintiff’s prejudice. The true question then is as to the validity of the pleas. Now, both of them appear to me utterly and radically defective. They offer no defence to the action, and if the evidence had been admitted, and a verdict found for the defendant upon these pleas, and there were no other pleadings, judgment must have been rendered against him non obstante veredicto. 1 Chitty’s Plead. 634, (7th american from 6th London edi. p. 695,) cited 2 Tucker’s Comm. 266.

The action is brought upon a bond with condition to convey a tract of land. The breach assigned is the failure to convey. In answer to this action, these pleas are filed ; and as both are very much the same, except in a particular to be hereafter noticed, I shall confine myself in the first place to the first, which would seem the least objectionable.

This plea makes no pretence to the performance of the covenant, It must be taken to be either a plea of accord and satisfaction, or a plea of substitution of another agreement, which has been performed, for that which is sued upon, or as an excuse for nonperformance.

As a plea of accord and satisfaction, it is naught throughout. Tor the accord and satisfaction is set forth as having been agreed on the 10th of July 1816, and *made and accepted in 1817, and by the assignment of breach it appears that the breach was not until 1830. Thus the accord and satisfaction must have been of the contract, and not of the damages; and no accord and satisfaction of a contract under seal, before breach, can be good without deed. 1 Taunt. 428 ; Com. Dig. Pleader ; 2 V. 8, cited 2 Tucker’s Comm. 28. And if it could only have been good by deed, the plea ought to have shewn that it was by deed. Moreover, if it was by deed, the deed ought to have been produced, that the court might see that it was a good and operative release and discharge of the first contract. Tor where either party pleads a deed under which he either claims or justifies, he must make profert of it to be shewn to the court and his adversary. 1 Chitty’s Plead. 397. It must be pleaded and produced, that it may be answered by plea of non est factum, or by demurrer, if its legal operation does not amount to a discharge. These, and possibly other reasons, have concurred in inducing the learned counsel not to insist on the plea, as a plea of accord and satisfaction.

Next, is it good as a plea of substitution of another agreement, which has been performed, for that which is the subject of the action? This is to my mind the true light in which the transaction is to be considered. Let us examine it.

Stephen Wilson had bound himself to convey a tract of land to William Spencer. John Wilson was the surety. Stephen Wilson, instead of conveying to Spencer according to contiact, conveys to John Wilson and one Benjamin Wilson, subject to a deed of trust to one Harness, given by Stephen Wilson on this very land. These facts appear by the plea itself. So that, by the defendant’s own shewing, Stephen Wilson had disabled himself from performing his contract, by first subjecting the land to an incum-brance, and then conveying it to third persons, in the teeth of his covenant. It is true, this did not ^'operate as a breach of that date, since Spencer had not at that time entitled himself to performance, by performing the precedent conditions.

The first part of the plea, then, distinctly sets forth that StephenWilson had disabled himself to convey the land directly from himself to William Spencer. He was so disabled when the agreement stated in the plea was made. What then was their agreement ? It was, in substance, that if John and Benjamin Wilson would convey the land to-Joseph Spencer, subject to Harness’s deed-of-trust,’ William Spencer would accept such a deed as a full discharge of the title bond. Here: then is a distinct allegation of a new and entirely different agreement, which, when performed, was to be a full discharge of the first.- It was the agreement to substitute the performance of one thing for another. Now a- parol agreement for a substituted contract cannot-be pleaded. 1 Hast 630; 3 T. E, 596, cited 1 Chitty’s Plead. 524. This substituted contract, then, to be effectual, must have been under seal; and if under seal, it ought to have been so pleaded. Hence it is clear, -that while the facts set forth in the plea sheyy .distinctly the case of a substituted contract,’ it cannot avail as such, because it does not appear to have been under seal. .

It may- not be uninteresting or unimportant to observe, however, that other reasons, besides the rules of pleading, rendered, it essential to the validity of this agreement, that it should have been under seal. The statute of frauds required it.

What was the state of the case, and the nature of the new contract ? It was-, thus.' William Spencer, who was entitled to a conveyance of the land to himself, is represented as agreeing that the land shall be conveyed, not to himself, but to another; namely., to Joseph Spencer. What is'the effect, then, of the contract ? It is, distinctly, to pass William Spencer’s land to Joseph-Spencer. *Could this be valid and binding under the statute of frauds ? Could it be in consistency with that statute, to permit William’s title to be taken away by mere parol evidence ? Assuredly not.

But it is said that although the contract must be written, the authority to make it-may be by parol: and that here parol authority was given to Joseph Spencer, to receive the deed to himself, and give the discharge. Why this but makes the matter worse. Though it has been decided that an authority may be by parol, was it ever heard that my parol authority to another man, to get a deed-for my land made to himself, was not within the statute ? The authority here constitutes the contract. Joseph Spencer has parol authority to get a deed made to himself of William’s land, and he has no other evidence of his right thus to have a conveyance to himself of the property of another. If such a case does not require the authority to be in writing, the statute is a nullity : it is sounding brass and a tinkling cymbal. ■ ,

But this is not all of this extraordinary affair. The allegation is, that instead of getting to himself the conveyance of the 150 acres of land which he had purchased, William Spencer verbally authorized Joseph to have a deed executed to himself, in discharge of the original contract; and this, without the allegation of the consideration of one cent moving from Joseph to William. ■ So that, by parol authority, he is made to part with his estate without value received, to the-very individual to whom the alleged authority is given, and who thus combines most-singularly, in his own person, the characters of grantee and agent of the grantor. - -

But admit that we may go into the field .of speculation and make a case. Suppose, that William had sold to Joseph for, value; we have yet the difficulty, that whereas by the title bond William had a right to a good deed without incumbrances, he agrees by this contract to take the conveyance of the identical tract subject to incumbrances ;— subject to a deed of trust, under which, according to the defendant’s own affidavit, another person has acquired the property. Sujsh an agreement is no good accord and satisfaction, unless the previous contract be released. For, as the payment of a less sum is no good satisfaction of a greater, 1 Str. 426 ; 5 East 230 ; 4 Mod. 88, (cited 2 Tucker’s Comm. 26,) so the conveyance of a tract of land with an incumbrance can be no satisfaction of the obligation to convey the same land without incumbrance. And if such agreement is not good as an accord and satisfaction, without a release, neither can it be good as a substitution for the first agreement, without such a release. Above all, it can in no manner operate as a release, since an authority by parol can confer no power to execute a release, or any instrument which can have the force and effect of one.

The learned counsel, not insensible to these difficulties, has endeavoured to avoid them, by contending that the plea is intended as matter of excuse for nonperformance. It is a sufficient answer to this position to refer to the plea, which appears to have no sort of analogy to the plea of excuse, the forms of which the distinguished jurist and pleader by whom it was drawn would certainly have pursued, had such been his design. See forms in 3 Chitty’s Plead. 1003-1009. The plea was obvious y designed to shew a discharge, although it wants, it is true, the material requisites to constitute it such. But suppose it pleaded as an excuse : still it does not avoid the objections made to it as a plea of accord. And besides, what sort of excuse is it, for not conveying to me land to which I have a right, to say that he who w.as bound to convey to me had sold and conveyed to third persons, and that they, without any lawful authority from me, had conveyed to a fourth ? Was it any excuse for not conveying to William Spencer, that Stephen Wilson had conveyed to John and Benjamin Wilson ? Or admitting he conveyed to them that they might convey to William Spencer, (which, by the way, is nowhere pretended,) is it any excuse for their not conveying to William, that they had conveyed to Joseph without any lawful authority from William ? By no means. And it has been already shewn that a parol authority to Joseph, to have a deed made to himself of William’s land, is void under the statute, and confers no authority.

The first special plea then is naught. The second is worse, for on its face it appears that the authority was by parol. Both pleas then being naught, there could be no error in réjecting the evidence in support of them. It is -unnecessary, therefore, to enter upon the numerous objections which suggest themselves to the evidence, considered independently of the faults in the pleading. View it as vye may, I think it was properly rejected.

We come next to the question as to the criterion of damages. The jury, it is supposed, have assessed the damages according to their estimate of value at the time of the breach ; and it is contended that that was erroneous ; Thompson’s ex’or v. Guthrie’s adm’r, 9 Leigh 101. In the decision in that case, I coincided ; but it is there distinctly intimated that the rule is not unbending, and that it will yield where, in consequence of fraud on the part of the vendor, its application would be unreasonable. In no case would it be more unreasonable than in one where the vendor, in violation of his contract, has sold or encumbered that property which he had bound himself to convey free of incumbrances. To say that a vendor may evade his contract by a sale to another and become liable to nothing more than the return of the purchase money, is in effect to give to that party the power of rescission whenever a higher price is offered, provided he can make his second sale to a purchaser without notice. To avoid the stringency of this objection, the learned counsel admitted that a court of equity would compel the vendor to account for the increased price. And why not a court of law ? If Stephen Wilson got the increased value of the land, and would be liable for it in equity, why shall he not be so at law ? The true question then is, whether the circumstances of this case would justify the recovery any where ? And I think they would. Waiving the objection to the course of the defendant upon the trial, there was enough before the jury to fix a fraud on Stephen Wilson. The defendant’s pleas were before them, and they had a right to take as true the allegations of the defendant in his pleadings. In them it is distinctly alleged that Stephen Wilson had sold the land to Benjamin and John. There is no intimation that that conveyance was in trust to convey to the plaintiff ; and moreover, Stephen had incumbered the property (as the pleas also shew) with a deed of trust; and though the plaintiff sued for a breach of the contract, there is no deed tendered to him by the pleadings. It seems then that the title was once in Stephen, and that he . parted with it; so that the case is not that of a party who has conveyed in good faith that to which his title unexpectedly proves defective, but of one who had a title in him, but, after his contract of sale, has disabled himself to perform, by conveying to another. Such a vendor should pay the value at the time of the breach, upon the principles of Thompson’s ex’or v. Guthrie’s adm’r.

It is said, however, that the purchase money is the measure of the damages ; that the plaintiff was therefore bound to shew what it was ; that, in defect of his doing so, his damages should be nominal; and that such should have been the result in this case. The premises and conclusion are alike unfounded. According to the class of cases of which Stout v. Jackson, 2 Rand. 132, is the leading one, the value of the land at the time of the contract is established as the true criterion of damages, and this in analogy to the recovery in the warrantia charlas. Between that recovery and purchase money, there is no analogy. Yet as the value at the date of the contract is regarded as giving the rule, it has been held that the agreed price between the parties was the fairest measure of that value. But that is only where there is an agreed price. Suppose there be none : suppose it were a personal service to be performed, such as to go to Eiurope to negotiate a loan ; in such a case, instead of the value of the land being estimated by the service, it is obvious that the value of the service would be best measured by the value of the land. That is most certain, and most susceptible of ascertainment. The value of the land, then, at the date of the contract, is the true criterion in general for estimating the damages ; and where there is no agreed price, and the consideration is of a matter collateral and not a sum of money in numero, the value of the land must be estimated upon evidence before the proper tribunal. Such was the case here. There was no agreed price of the land. The consideration consisted of two collateral acts ; first, the delivery to Stephen Wilson of a contract between himself and one William Smith ; and secondly, the discharge, and delivery to Wilson, of two bonds of his to Smith, amounting to eleven or twelve thousand dollars. Shall we then estimate the value of the land, which is the desideratum, by the testimony of witnesses, amd thus directly attain our end; or shall we go round about to work, and ascertain the value of the collateral acts, in order thereby to measure the value of the land ? The absurdity of the latter proceeding requires no commentary to expose it. In this case then, as there was no agreed price ; as the title bond in the record evinced this, the court was right in saying that it was not necessary the actual consideration paid by the plaintiff should be proved. The plaintiff had only to prove the value *of the land. He did offer proof of it, referring to the time of the breach, and contended for that as the fair criterion of his damages. The defendant does not appear to have controverted it, but entered into' the controversy as to the value at that period. Had he moved to instruct the jury that the date of the purchase was the true period to which to direct their attention, the question would have been fairly presented; the plaintiff would have been called on to shew why the rule should not apply ; and if the instruction was refused, the court would have spread its reasons on the record, instead of this, he joins issue with the plaintiff as to the value in 1830, and offers evidence to reduce the price at that date. And when the jury have fairly taken the medium value, he ask a new trial, because they did not do that which he neither asked them to do, nor asked the court to instruct them to do. And even on this motion for a new trial, he does not have all the evidence spread on the record, but submits himself to the decision of the court, only as to the damages being excessive, and not as to the principle on which they were estimated. The court, therefore, very naturally sets forth only what was proved as to value, without referring at all to the question of principle, now raised by the defendant. Upon the whole, therefore, I do not think him entitled to a reversal, for the refusal to grant a new trial.

Next, as to the interest. I think it was within the power of the jury to allow it, and moreover that the justice of the case demanded it. It was allowed in the parallel case of Pate v. Spotts, 6 Munf. 394, and not objected to.

Lastly, as to the form of the judgment. The case of Pate v. Spotts seems to me fully to sustain the judgment here. It only differs from this in being full of irregularities ; yet they were all disregarded. The declaration, as here, was on a title bond, and in debt ; the *jury assessed the damages, with interest ; and the court gave judgment, not for the penalty of the bond tobe discharged by the damages, but for the damages, themselves. This was held an irregularity not injurious to the appellant, and the judgment was affirmed, I think it was rightly so. The judgment was certainly informal ; and in a case where further breaches might occur, as in debt on administration bonds, the irregularity would be injurious to the plaintiff but beneficial to the defendant, as the judgment might be a bar to any future action. But in this case, where there can be but one breach, the form is not essential for the preservation of the plaintiff’s rights, since the bond is satisfied by this recovery ; nor can it be essential for the defendant, as “the remedy has extended to the whole injury, and the action can in no form be repeated.”

It is objected, indeed, that if the plaintiff delays his recovery of the judgment, the accruing interest may exceed the penalty. The answer is obvious. The court sees that the damages and interest to the date of the judgment fall far short of the penalty : and as to the interest subsequent to the judgment, the plaintiff might recover that by action of debt upon the judgment, even if the jury had not allowed it. Besides, in the case of Pate v. Spotts, the same error (if it be one) was not deemed tenable, even by the able and veteran counsel for the appellant.

I am of opinion to affirm the judgment.

PUR CURIAM, Judgment affirmed. 
      
      AS tte- question is as to a new trial, a reference to tkat payer is proper. Note by tke president. — Note in Original Edition
     