
    Samuel Evrit and E. E. Wightman v. Henry N. Bancroft.
    The plaintiff, a real estate agent, having authority to sell a farm, -was, by agreement with his principal, to have, for liis services, all the farm brought above a specified price per acre, and the balance of the purchase money he was to pay over to the principal. - He entered into an agreement in his. own name with the defendants for the sale of the farm, whereby they agreed to pay a higher price for it than he was to pay over to his principal. In an action by the plaintiff against the defendants to recover as damages for a breach of the agreement, the amount of compensation he would have received if the agreement had been fulfilled by the defendants:
    
      Held, 1. That the liability of the defendants was to be ascertained from their own agreement, irrespective of the agreement between the plaintiff and his principal; and that the rule of damages would be the same, whether the suit was brought in the name of the principal or in the name of the plaintiff as one of the contracting parties.
    
      2. When the vendor retains the land, and its value, at the time of performing the agreement, exceeds the agreed price, nominal damages only can he recovered.
    Error to the Court of Common Pleas of Ashtabula county — reserved in the District Court.
    The defendant in error, the plaintiff in the court below, being a real estate agent, was, on tbe 3d of April, A. D, 1865, employed by one Webster to sell the farm of tbe latter. The authority was in writing, signed by the parties, and was to continue for one year. It was stipulated that the farm should not he sold for less than thirty-seven dollars per acre, and that the defendant in error should have all that the farm brought over and above said sura as compensation for his services, and the purchase money, to the extent of thirty-seven dollars per acre, he was to pay over to said Webster.
    Subsequently the defendant in error made an agreement with the plaintiffs in error for the sale of said farm, of which the following is a copy: “ This article of agreement entered into this 1st day of November, a. d. 1865, by and between H. N. Bancroft, of the township of Jefferson, Ashtabula county, and State of Ohio, of the first part, and Samuel Evrit and E. E. Wightman, of Venango and Crawford counties, Pennsylvania, of the second part, witnesseth: that the party of the first part has sold to the party of the second part the human Webster farm, of one hundred and forty-three acres of land, it being located in the township of Jefferson, and being the same upon which he now lives, and being tbe same farm which is placed in my hands for sale, for the sum of $6,500, all to be paid on the 1st day of February, a. d. 1866, at which time possession will he given. The sugar-house fixtures are to go with the farm, or their equivalent paid in cash to the party of the second part. H. N. Bancroft, Samuel Evrit, E. E. Wightman.”
    This agreement was duly stamped.
    Bancroft filed his petition to recover the damages he claimed to have sustained by tbe breach of this contract on the part of Evrit and Wiglitman. He states, in his petition, the amount of his damages to be “twelve hundred and nine dollars, that being,” as he avers, “ the amount of money which belonged to him as his commission for selling said farm.”
    A demurrer to the petition having been overruled, the case was submitted to a jury on an inquiry of damages. On the trial the plaintiff gave no evidence as to the value of the land. The evidence introduced by the defendants showed the value of the farm on the 1st day of February, A. d. 1866, to have been from forty-eight dollars to fifty dollars per acre.
    The defendants below asked the court to charge the jury that the true rule of damages was the difference between the contract price of the farm and its value at the time of the breach of the contract, or on thq, 1st day of February, A. d. 1866; and that if the jury should find that the value of the farm at said time equaled or exceeded the price agreed to be paid by said defendants in the contract, the jury should return a verdict for the defendants.
    This instruction the court refused; but told the jury in effect, among other things, that if the defendants had kept and performed their contract, the plaintiff’s interest therein would have been the difference between thirty-seven dollars per acre and the amount the said defendants agreed to pay for the same, and that the defendants, by their non-performance or refusal to perform, could not lessen the plaintiff’s interest in said contract, and that the rule of damages would be the difference between thirty-seven dollars per acre for the farm, and the price the defendants agreed to pay for it.
    The verdict was in favor of the plaintiff for $1,420.64, on which, after overruling a motion for a new trial, the court rendered judgment.
    The object of the present petition in error is to obtain the reversal of this judgment.
    
      
      S. A. Northway, of Northway § Ensign, for plaintiffs in error.
    I. The demurrer of "Webster ought to have been sustained. Even if Bancroft can maintain his action, Webster is not a necessary party.
    II. The demurrer of Evrit and Wightman ought to have been sustained.
    Even if Bancroft can sue on the contract in his own name, his petition ought to contain an averment that at the time he began his suit he was ready and willing to perform on his part, if ho seeks to recover cither the whole or part of the purchase money. 17 Barb. S. C. 260.
    III. The court erred in divers rulings at the trial.
    1. The court erred in refusing to instruct the jury as asked by plaintiffs in error, “ that if they should find that the plaintiff (Bancroft) had failed to establish by proof any damages, that they should return a verdict for said defendants” (Evrit and Wightman).
    And the court should have given, as the true rule of damages that which the plaintiffs in error requested the court to give, viz: “That the true rule of damages in this case was the difference between the contract price of the farm, and the value of said farm at the time of the breach of the contract, or on the 1st day of February, a. d. 1866, and that if the jury should find that the value of said farm, on said 1st day of February, A. d. 1866, equaled or exceeded the price agreed to be paid by said defendants in their said contract, that the jury should return a verdict for said defendants.” Sedgw. on Dam. (2 ed.) 190; 2 Parsons on Contracts, 506, 507, and notes (3 od.); 15 Ind. 499; 6 Gray, 25.
    The cases of Franchot v. Leach, 5 Cow. 506; Ulna v. Plummer, 4 Greenl. 258, and Shannon v. Comstock, 21 Wend. 457, show that where a recovery of purchase money as damages has been permitted, the actions amounted to nothing more or less than suits for a specific performance, and do not fix any rule of damages.
    The court erred in charging the jury that the true rule of damages “was the difference between thirty-seven dollars per acre for the farm, and the price the said defendants by their said contract agreed to pay for it.”
    Again, the court say, “If the evidence showed the land to be worth thirty-seven dollars per acre or more, then if the said defendants had kept and performed said contract, the said plaintiff’s interest therein would have been the difference between thirty-seven dollars per acre and the amount said defendants by their said contract agreed to pay for the same.” Does the court mean to be understood as saying that if the evidence showed the land to be worth thirty-seven or thirty-eight dollars per acre and no more, then the said Bancroft should recover the difference between thirty-seven dollars per acre and the price agreed to be j>aid, viz: forty-five dollars per acre? That is the language of the court. Can anything be more palpably erroneous. They incurred no additional liability by reason of the fact that they contracted with the agent instead of the principal. The rule of damages is the difference between the contract price and the cash value of the farm at the time of the breach. 6 Barb. S. C. 423; 7' Hill (N. Y.), 62.
    Again, the rule has always been, that “the damage must be such as may fairly be supposed to have entered into the contemplation of .the parties when they made the contract, that is, must be such as might naturally be expected to follow its violation; and they must be certain, both in their nature and in respect to the cause from which they proceed.” See Griffin v. Colver, 16 N. Y. 495. “The damages sought to be obtained must flow directly and naturally from the breach, and must not be the remote, but proximate, consequence of such breach, and must not be speculative or contingent.” See same authority.
    Evrit and Wightman knew nothing of Bancroft’s contract with Webster; did not contract with reference to it, and it has nothing to do with the assessment of the damages for which they are liable. Wheeler v. Knaggs, 8 Ohio, 169, is not in point.
    
      
      W. P. Howland, for defendant in error:
    The defendant in error had acquired an interest in the-proceeds of said sale to the amount of $1,209, that being the amount he would have received if the plaintiffs in error-had kept and performed the contract on their part, and consequently is the loss or damage he has sustained by their refusal to pay the purchase money, and it being the-duty of men to perform their contracts and not repudiate-them, is the amount the defendant in error is entitled to recover, with interest from the 1st day of February, A. d. 1866. See the general rule of damages as laid down in the-following cases: Wheeler v. Knaggs, 8 Ohio, 173; Aldee et al. v. Kightly (the latter part of Judge Pollock’s opinion), 15 M. & W. 117; Doolittle & Chamberlin v. McCullough, 12 Ohio St. 367, 368; Allen v. Jarvis, 20 Conn. 37-48.
    The contract was made between Evrit and Wightmaa and Bancroft, binding Bancroft to convey to them and entitling him to payment from them; therefore the action was; rightly brought in his name. Story on Agency, secs. 392-894, 397, 269; also, Code, sec. 27. They knew when they made the contract that Webster owned the farm, and before any money became due they were informed of Bancroft’s right to $1,209 of the purchase money. This-state of facts gave Bancroft a lien upon the purchase-money for that sum. Story on Agency, sec. 409. And he may sue the vendees in such case, after notice to them, for his commissions. Ib., secs. 407-410, also sec. 403, and 1 Chit. PI. 7, 8.
    By the contract, the pm’ehase money was due and payable at a day named, but the deed was not to be delivered until afterward. True, possession was to be given on the* day named for the payment, but it is averred that Bancroft was, and for a considerable time thereafter, ready an d willing to deliver. There was, therefore, no necessity for a tender of a deed before suit. '2 Parsons Cont. (4 ed.) 41, note lr and authorities cited, also pp. 189-190; Pordage v. Cole, 1 Saund. 319, and Sergeant Williams’ notes; Mattock v. Kinglake, 10 Ad. & Ell. 50. This case may also be found in 37 Eng. Com. Law, 37, and is equally in point; Sumner & Co. v. Parker, 36 N. H. 449; Robs v. Montgomery, 20 Johns. 15; Cunningham v. Morrel, 10 Johns. 202; 2 Pick. 292; Kane v. Wood, 13 Pick. 281; Grant v. Johnson, 1 Seld. 247; Bean v. Atwater, 4 Conn. 3; Ryder v. Pond, 19 N. Y. 262.
    Moreover, they gave notice before the purchase money became due, that they would abandon the contract and refuse payment, and this waived the tender of a deed. 2 Parsons on Contracts (4 ed.), 188; and authorities there cited; 6 Abbot’s Dig. 140, sec. 146; Smith v. Lewis, 24 Conn. 624; Crist v. Armour, 34 Barb. 378; Skinner v. Tinker, 34 Ib. 333; Stone v. Sprague, 20 Ib. 509; Billinger v. Kitts, 6 Ib. 281; 3 Ib. 284; 2 Comst. 60-65; Chitty on Contracts, 744; 1 Hilliard on Vendors, p. 35, sec. 40, p. 37, see. 45; 2 Ib. 93, sec. 1; 1 Pot. 455; Williams v. United States Bank, 2 Pet. 102; Danforth et al. v. Walker, 37 Vt. 240; Brock et al. v. Hidy et al., 13 Ohio St. 306, 310; Webster v. French, 11 Ill. 254.
    The rule of damages insisted upon by plaintiffs in error, although prevailing in England, has been repudiated in Maine. Oatman v. Walker, 33 Maine, 67; Ulna v. Plummer, 4 Greenl. 258; Sedgw. on Damages (3d ed.), 197 (marginal, 191). But the rule does not apply to this case. The reason on which it is based is that the land remains in the bands of the vendor, and satisfies him to the extent of its value, hut Bancroft had and has no part of the farm for such purpose. The case of Allen v. Jarvis, 20 Conn. 37-48, is directly in point. Storrs, J., said: “The rule of damages in actions for the non-acceptance of property sold or, contracted for, is the actual injury sustained by the plaintiff in -consequence of such non-acceptance. This ordinarily is the difference between the price agreed to be paid for it and its value when such price exceeds the value. But there may be cases where the property is utterly worthless in the hands of the plaintiff, and there the whole price, agreed to be.paid should be recovered.”
    Although this action in form below was to recover damages, yet, when examined, it will be seen that in substance and fact it was brought to recover, and the judgment below was rendered for nothing but that part of the purchase money which belonged to Bancroft in his own right. The judgment will not be reversed for error of form. Code, sec. 138; Ohio Life Ins. and Trust Co. v. Goodwin et al., 10 Ohio St. 557; Scovern v. The State, 6 Ohio St. 288; Hollister and Smith v. Reznor, 9 Ohio St. 1; L. M. R. R. Co. v. Collet et al., 6 Ohio St. 182; Whitman et al. v. Keith et al., 18 Ohio St. 134.
    Webster was a necessary partyvln order to bar his right to the $1,209. Code, sec. 35; Nash’s Pl. & Prac. 11, also note, p. 797, Addenda.
   White, J.

The original action was not an equitable one brought for the specific performance of the agreement for the sale of the farm, and for the apportionment of the purchase money between the plaintiff and his principal. It was strictly an action in personam to recover damages from the defendants for the breach of the contract.

We deem it unnecessary now to inquire whether there was technical error in overruling the demurrer to the petition. The bill of exceptions clearly discloses the real ■character of the case. The claim which the plaintiff sought to enforce against the defendants consisted of the compensation to which he would have been entitled, under his agreement with his principal, if the agreement with the defendants for the sale of the farm had been performed. As his loss of this compensation resulted from the default, as he alleges, of the defendants, he claims the right to make them respond in damages to the extent that may be necessary to repair it. We think he has no such right.

The defendants were no parties to the agreement providing for this compensation. Their liability is to be ascertained from their own agreement, and the rule of damages is the same whether the suit is brought in the name of the principal, or in the name of the agent as one of the contracting parties. An agent entering into a contract for the sale of property of his principal, in which he binds himself personally, acquires no greater rights against the purchaser, than he would acquire if he was contracting for the sale of his own property.

In this case it appears from the proof that the farm was-of greater value than the contract price; hence the damages could have been only nominal if the principal had sued, or if the plaintiff had owned the farm he contracted to sell. But upon the theory on which 'the case was tried and disposed of, in the court below, as the plaintiff’s compensation as agent was, by the terms of his employment, made dependent on the defendants fulfilling their agreement, they, on their default, became liable to him for the-loss of such compensation, although if there had been no-agency, they would only have beeu liable for nominal damages.

We think the law imposes on them no such liability.. The loss of such compensation was not the natural and proximate result of the breach, by the defendants, of their contract.

Judgment reversed, verdict set aside, and cause remanded..  