
    Randon v. Barton.
    Wherever it is proper to join several defendants in the same suit, the suit may be instituted in any ecmnly where one of tlie defendants resides, where a divisible obligation to do a thing was given to two, and one of the obligees, without ytiihoriiy from tlie other, but professing to iiave such authority, assigned it to another: Held, That the assignee could join the obligees and obligor as defendants in the same suit, and recover one-half of the obligation from-the obligor and damages for the other half from tlie assignor.
    Where a person undertakes to assign an instrument which he has no right to assign, he Í3 not entitled to demand due diligence of the assignee to collect the money or enforce the obligation.
    No demand and notice or other evidence of diligeneé-is necessary when from the facts of the ease it is apparant that the party to be charged had no right to expect it and could not iiave been injured by the want of it.
    A contract for the transfer of land certificates need not be under seal.
    The. rule respecting tlie measure of damages for breach of contract to transfer and deliver land certificates is that- which applies to the breach of contracts for the sale of chattels, not of hinds. (Note 58.)
    Where contracts for tlie sale of chattels are broken by the failure of the vendor to deliver the property according to the terms of the contract, If the price has not been paid in advance, tlie measure of damages is the difference between the priee contracted to be paid and the value of the article at the time when it should-have'-been delivered; but if the price has been paid in advance, the purchaser is entitled to the advantage of any rise in the market value of the article which may have taken place up to the time of the trial. (Note 59) Whore the suit was for land certificates or their value, and the jury found for the plaintiff ‘•two thousand and eighty acres of land,at eighteen and three-quarter cents per acre,” the court gave judgment in favor of the plaintiff for three hundred and ninety dollars: Held, There was no error.
    Error from Bastrop. The defendant in error brought suit against tlie plaint iff in error jointly with Edward Burleson-and Thomas F. McKinney, in the District. Court for Bastrop county, on the 20th day of July, 1847. The petition alleged, in substance, that the plaintiff was- the owner of a certain contract in writing, made by Burleson with McKinney and Bandon, for the transfer, by the. former to tlie latter, of certain land certificates described in the petition, and calling for tlie quantity of four thousand one hundred and sixty acres of land; that for a valuable consideration the defendant Bandon contracted to transfer, and did assign to the plaintiff, the entire interest in said contract, the said Bandon representing that tlie entire interest belonged to him, and that McKinney had transferred to him all the right and interest which lie ever had in tlie contract; that tlie plaintiff had presented the contract to Burleson, the maker, and demanded the certificates referred to, but that he had refused to deliver or transfer the certificates, alleging that there still remained in said McKinney a right to tlie undivided half of them, and that lio liad been notified by McKinney of his interest! The plaintiff alleged that lie had sustained damages, etc., and prayed that the entire interest of all the defendants lie decreed to him ; or if, by reason of tlie claim and rights of tlie defendant McKinney, that cannot lawfully he clone, that the interest of the. defendant Bandon he adjudged to him, anti that;he have judgment against said Bandon for the value of so much in amount of the certificates assumed to he conveyed by him as lie, Bandon, had no authority or right to convey, which he alleged to lie of the value of twenty-five cents per aere. The petition alleged that tlie defendant Burleson resided in the county of Bastrop, McKinney in the county of Galveston, and Bandon in tlie county of Fort Bend, and concluded with a prayer for process and for general relief. The contract described in the petition 'and made a part of it is set out in the record, and purports to he made by Burleson in favor of McKinney and Bandon, and to have been assigned by Bandon to tiie plaintifl' Barton, as follows: *‘I have this day transferred the above obligation on Gen. Tí. Burleson, for four thousand one hundred and'sixty acres of laud certicate.s, t.o Wayne Barton, for tire valuable consideration of four hundred dollars, this ISth February, 1S47.
    D. RANDON.”
    At the fall Term, 1847, the defendants McKinney and Burleson answered, and tiie. plaintiff had judgment against the latter for two thousand and eighty acres of land certificates, being1 half the amount claimed in the petition ; and the defendant Bandon having1 been served with process and failing1 to appear, judgment by default was taken against him, and a writ of inquiry awarded; upon which, after hearing1 the evidence, tiie jury returned a verdict for the plaintiff for two thousand and eighty acres of land, at eighteen and three-fourths cents per aeré, and the court thereupon gave judgment for $390; to reverse which the defendant Baudon prosecuted this writ of error.
    
      Hunger, for plaintiff in error.
    Tiie obligation of Baudon was an independent one. There was no such privity as justified tiie joinder of him in a suit against Burleson.
    II. The contract was for tiie conveyance of realty, and should have been sealed.
    III. Tiie plaintiff did not use due diligence to enforce the obligation against the maker. Tiie instrument was assigned on tiie 18th of February, and suit was not commenced until the 20th of July thereafter. He was not, therefore, liable as surety. It will hardly be contended that he can be held liable in warranty in an action like this.
    IV. Neither in law nor equity can- the plaintiff recover “the present value of the certificates.” He was at most only entitled to §200 and interest from the time he paid'the money.
    V. The court had no jurisdiction of the suit, if for land; no jurisdiction of the person, if the suit was for damages.
    Gillespie, for defendant in error.
    The joinder of the defendants is authorized upon general principles of law, and seems to be enjoined by the act of 1846, p. 375, secs. 48, 49.
   Wheeler, J.

Of the several errors assigned there are but two which are deemed of a character to require particular ’notice, and these are—

1st. That the plaintiff did not show tiie use of diligence sufficient to charge the indorser, Bandon.

2d. That the verdict is illegal in having found the present value of the land certificates.

That the plaintiff could maintain this action against the defendants jointly, and in tiie county of the residence of either, cannot admit of a doubt. (Acts of 1846, p. 375, sec. 46; Id., pp. 363, 364, sec. 1.)

But it is insisted that tiie plaintiff did not use due diligence to enforce his contract against the maker. To this objection it is a sufficient answer that the present is not a case to which the rules which have been invoked respecting diligence are applicable. The defendant Bandon undertook by his assignment to transfer an interest which he did not possess and which he had no right to convey. His assignment, therefore, was a fraud upon the plaintiff, and lie liad no right to notice the refusal of tiie maker to perform the contract. He had no right to expect that Burleson would convey the certificates upon his individual assignment.. No demand and notice or other diligence, therefore, was necessary to charge, him. The reason for giving notice and tiie necessity of it ceases when from the facts of the case it is apparent that the party to he charged had no right to expect it and cannot have been injured by the want of it. ’ (2 Stark. Ev., 160, 161, 165.)

To determino the, remaining question, it becomes, necessary to ascertain what was the true measure of damages for the breach of contract complained of. ■And it is to be observed that this was not a contract to convey land or any estate or interest in land, but merely for the transfer of unlocated land certificates. It is true that the jury in their verdict employed the word “laud,” but from the whole verdict taken together and in reference to tlie issue it is very clear that they meant land certificates only. The rule, therefore, respecting the measure of damages applicable to this case is that which applies to tlie breach of contracts for the sale of chattels, hot of lands.

"When contracts for the sale of chattels are broken by the failure of the vendor to deliver the property according- to the terms of the. contract, it is well settled that as a general rule the measure of damages is the difference between the price contracted to ho paid and the value of the article at the time when it should he delivered, upon tlie ground that this is the plaintiff’s real loss, and that with this sum he can go into the market and supply himself with tlie same article from another vendor. (Sedgw. Meas, of Dam., 260.) But where the purchaser lias paid the price in advance, or has otherwise, as in tlie loan of stocks, been deprived of the use of his property, there are different and conflicting' decisions upon the question whether the purchaser is limited to the value of the article at the time for delivery, or slialL have the advantage of any rise in the market value of tlie article which may have taken place np to the time of trial. In England and New York the latter rule is laid down, on the gronud that the purchaser, having been deprived of the use of his property, is entitled to the best price he could have obtained for tlie article up to the time of the settlement of the question. (Ib., 2 East. R., 211; 2 Taunt. R., 257; 2 B. & Cres. R., 624; 2 Caine’s Cas. E., 200; 3 Cow. R., 82.)

In tlie case of Clark v. Pinney, 7 Cow. R., 681, the distinction between contracts wholly executory and those where payment has been made was taken and firmly maintained by tlie Supreme Court of Now York. The action was upon a contract for value received to deliver on a future day a certain quantity of salt, at a stipulated price per bushel. The court held that as tlie goods had been paid for, tlie measure of damages was tlie difference between the contract price and tlie highest price at any time between the period appointed for delivery and tlie day of trial. After recurring to tlie authorities, tlie court say: “We hold it, therefore, to be settled by authority, and rightfully settled upon principle., that where a contract is made for the salé and delivery of goods or chattels, and tlie price or consideration is paid in advance, and ail action is brought upon tlie contract for the non-delivery, 1 lie plaintiff is not confined in measuring his damages to the value of tlie sirliele on the day when they should have been delivered.” The same rule was laid down in tlie earlier'case of West v. Wentworth, (3 Cow. R., 82.) Chancellor Kent, in liis Commentaries, (2 Kent, 480, n. b, 5th ed.,) says: “The general rule is well settled that in a suit by a vendee for a breach of contract oil the part of tlie vendor for not delivering an article sold the measure of damages is tlie price of the article at ike time, of the breach. This undoubtedly is the rule where tlie price has not been paid in advance by tlie vendee ; 'but, as has been remarked by Mr. Sedgwick, the learned commentator lias omitted to advert to the distinction resulting from the payment of the price in advance, which runs through the English- and New York cases, and which setuns to us a sound distinction. In several of the States, however, this distinction has not been recognized. (3 Mass. R., 364; 5 W. & S. R., 106; 2 Con. R., 485.) It seems to have met with the approval of Chief Justice Marshall. In an action brought upon a contract for the. delivery of cotton at ten cents per pound, whicli when it was to have been delivered was worth twelve cents, and before the suit was brought had risen to thirty cents per pound, the plaintiffs insisted that they were entitled to the highest market price up to the rendition of tlie judgment. But the unanimous opinion of tlie court was “that the iirice of tlie article at the time it was to he delivered was the measure of damages.” There had been no money advanced and Marshall, Ch. J., said: “For myself only I can say that T should not think the rule would apply to a case where advances of money had been made by (lie purchaser under the contract. But I am not aware what would be the opinion of the court in such a ease.” (3 Wheat. R., 200.)

Note 58.—James v. Drake, 39 T., 143; Johnson v. Newnam, 43 T., 628.

Kora 59.—Calut v. McFadden, 13 T., 324; Brasher, v. Davidson. 31 T., 190: Cartwright v. McCook, 33 T,, 612

This distinction is maintained by the authority of at least the courts of England and ISTew York, and we think rightly upon' principle; and its application seems peculiarly appropriate in the present case. Here the money was paid in advance. The contract was for the transfer of land certificates, and resembles in some respects contracts for the transfer of stock, in respect to which it seems generally to have been held that the damages should be, calculated at the price on the day of trial. In a case of this character in the King’s Bench, (2 East R., 211,) Grose, J., said : “The true measure of damages iii all these cases is that which will completely indemnify the plaintiff for the breach of the engagement.” And Lawrence, J., said : “Suppose a bill were filed in equity for a specific performance of an agreement to replace stock on a given day, which had not been done at the time : would not a court of equity compel the party to replace it at the then .price of stock, if the market had risen in the meantime?”

The court in the present case decreed a specific performance against the defendant Burleson, and the same would unquestionably have been decreed against Randon, if the interest had been in him and he had been legally capac-itated to make the transfer. The plaintiff would then have obtained the certificates specifically. Shall he bo placed in a worse condition because Randon had not the title or right to make the transfer; or shall this defendant, for that reason, be placed in a better condition or be permitted to discharge his liability with a less sum than his codefendant Burleson? Or rather shall he make such compensation as will completely indemnify Ihe plaintiff for the breach of the engagement, by enabling him to go into the market and purchase an amount of certificates equal to that which the defendant assumed to transfer to him? This would be most consonant with justice, and is, it is conceived, the correct rule upon principle and authority. It accords to all parties the same measure of justice.

We have considered the question upon the supposition- that the jury estimated the value of the certificates at the time of the trial; and we concluded that it was not improper to do so. But there is no statement of facts; and as the prayer of the petition is for the “present value ” of the certificates, the estimate may have been of their value at the commencement of the suit. If so, it would not vary the conclusion at which wo have arrived. There would, perhaps, in that case be less room for doubt as to the accuracy of that conclusion. (Clark v. Pinney, 7 Cow. R., 681.)

Judgment affirmed.

Lipscomb, J.

I rest my concurrence on the ground that payment had been made under the contract. If no payment had been made, I should in that event believe that a different rule of damages would govern the case.  