
    EHMER v. TITLE GUARANTEE & TRUST CO.
    (Supreme Court, General Term, Second Department.
    July 26, 1895.)
    Pubchasing Agent—Mistake—Liability.
    Defendant was employed to represent plaintiff in acquiring title to lot 125, subject to a mortgage of $9,000, but, instead, through negligence, took a deed to lot 123, of equal value with lot 125, and also subject to a mortgage of $9,000, paying therefor the $4,000 which had been received from plaintiff with which to buy lot 123. Plaintiff, on discovering the error, by suit had the deed corrected. But lot 125 was then subject, in addition to the $9,000 mortgage, to a second mortgage of $5,000, under which plaintiff was thereafter evicted. Held, that defendant was liable for the $4,000, with interest.
    Appeal from circuit court, Kings county.
    Action by Susanne L. Ekmer against the Title Guarantee & Trust Company. Judgment wras entered on a verdict in favor of plaintiff, and defendant appeals.
    Affirmed.
    Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.
    Edward E. Sprague, for appellant.
    J. T. Marean, for respondent.
   BROWN, P. J.

The questions raised by this appeal relate to the measure of damages applicable to the facts of the case. The material facts, as determined by the jury and now agreed upon by counsel, are substantially as follows: The plaintiff, having verbally contracted with one O’Neil to purchase the premises known as No. 125 Fourth avenue, in the city of Brooklyn, employed the defendant to prepare the contract, examine and insure the title, and to represent her in the transaction. The purchase price was. to be $4,000, and the premises were to be conveyed subject to a mortgage of $9,000. By an error of defendant, the written contract of sale described No. 123 Fourth avenue as the premises to be sold to the plaintiff, and defendant accepted for the plaintiff, from O’Neil, a deed for No. 123, subject to a mortgage for the amount aforesaid, and paid to him the sum of $4,000, which it had theretofore received from the plaintiff, and thereupon issued to plaintiff a policy guarantying her against all defects in, or incumbrances upon, the title so conveyed. Plaintiff thereupon entered into possession of No. 125 Fourth avenue, and continued in possession thereof until June, 1893, when she was evicted by the then owner thereof, who appears to have been a purchaser under a foreclosure of a second mortgage. At the time O’Neil entered into the contract with the plaintiff, he owned both premises. They were of equal value, and each was incumbered with a first mortgage of $9,000, and, at the time of the conveyance, No. 125 was subject to a second mortgage of $5,000. Plaintiff discovered the error in the conveyance about three months after the delivery to her of the deed, and, subsequent thereto, in an action brought for that purpose, recovered a judgment against O’Neil, reforming the deed, and inserting therein the description of No. 125 in lieu of No. 123 Fourth avenue. The court charged the jury that, if they found for the plaintiff, she was entitled to recover $4,000, with interest from June 1, 1893, the date of the eviction, if the property was then worth that sum above the incumbrance; and it refused to charge that it was the duty of the plaintiff, upon discovering the mistake in the description, to sell the premises actually conveyed to her for the highest price obtainable, and thus reduce the damages, and that, in the absence of any evidence that there was a difference in the value of the two houses, defendant was not liable for more than nominal damages. The exception to these rulings presents the question to be considered on this appeal.

The duty which the defendant owed to the plaintiff under its contract was not to pay over to O’Neil the sum of $4,000, which it had received from the plaintiff, until it received from him a conveyance of No. 125 Fourth avenue, subject to no other incumbrance than a mortgage of §9,000. This obligation the defendant was bound to perform with reasonable care; and if, by reason of its negligence, it parted with the money which it received from the plaintiff without obtaining for her a title to the property named, it immediately became liable to return to her that sum. The proposition that, because it received for her a deed for property of equal value, therefore she suffered only nominal damages, is plainly unsound. The purchase of a piece of land cannot be likened to the purchase of corporate stocks or merchandise. Each piece of land has a character and location of its own, and differs in some essentials from all other real estate. The plaintiff had a right to the conveyance of the lot of her choice, and she was not bound, in her relations with the defendant, to accept some other piece of land, for the sole purpose of relieving it from the loss arising from its neglect. When it appeared, therefore, that the result of the defendant’s management of the business was that it had obtained from O’Neil the title to a piece of land other than that which the plaintiff intended to purchase, it became immediately liable to restore to her the money it had received from her. Nothing that the plaintiff did after she discovered the mistake relieved the defendant from the liability to restore the money. It has not been charged with the costs of the action against O’Neil to reform the deed, as it might have been, if that action was prosecuted in good faith; and the fact that a second mortgage on No. 125 was foreclosed, and the plaintiff evicted from the property, has not increased the defendant’s liability. The pertinent and material fact jn the case is that it received from the plaintiff $4,000 with which to acquire for her the title to a specific piece of land. It has not acquired the land, and it has paid away the money. The jury having found this to be the result of negligence, the obligation to restore the money is plain. The judgment must be affirmed, with costs. All concur.  