Noble v. Edwardes, L. R. 5 Ch. D. 385; Scudder v. Waddingham, 7 Mo. App. 26; Oll Colony R. R. Corp. v. Evans, 6 Gray, 25; S. C., Sedgwick on Damages, 34; Richards v. Edick, 17 Barb. 260; Lewis v. Lee, 15 Ind. 499; Porter v. Travis, 40 Id. 556, reviewing the cases; Kauffman's Appeal, 55 Pa. St. 383; Pennock v. Freeman, 1 Watts, 401; Miller v. Collyer, 36 Barb. 250. And no rule in respect to such contract is better settled than this: "That the party who has advanced money, or done an act in part performance of the agreement, and then stops short and refuses to proceed to its ultimate conclusion, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, will not be permitted to recover back what has thus been advanced or done:" Hansbrough v. Peck, 5 Wall. 507.

2. Action, when Maintainable—Tender, when Unnecessary.—Of course no action can be maintainted on the contract unless there has been a breach of some one of its stipulations by defendant or vendee before the suit was instituted; as where payment of the purchase money was to be made in installments, and suit was brought immediately after vendee's repudiation of the contract, but before any payment became due: Greenway v. Gaither, Taney's Dec. 227. And when a conveyance of real estate is to be executed upon payment of the purchase money, the acts are so far dependent that the grantor cannot recover in an action for the purchase money without showing a performance on his part by the tender of a deed of conveyance, or an offer to convey upon payment: Berryhill v. Byington, 10 Iowa, 223. But if the vendee tell the vendor before the day of performance that he will not perform, no tender is necessary: Franchot v. Leach, Cow. 506. So where the vendee has previously declared his inability to perform his contract: Dixon v. Oliver, 5 Watts, 509. And where the purchase money is to be paid or secured and the conveyance executed on a particular day, and neither party performs or offers to perform on the day, neither can maintain an action at law upon the contract: Stevenson v. Maxwell, 2 N. Y. 408. A subsequent tender of a conveyance will not entitle the vendor to an action for the purchase money: Felter v. Weybright, 8 Ohio, 167. But if the terms of the contract show that payment of money is to be made before the deed is to be given, and no moncy is paid or offered at the time fixed, an action at law can be maintained without first tendering a deed of the land: Robinson v. Heard, 15 Me. 296. Where the vendee, by the terms of an auction sale, has an option of taking the estate after it is bid off to him, and in case of refusal of having it sold again on his account, it has been held that no action can be maintained against him for a breach of the contract until a resale shall have ascertained the deficiency in value, if any: Webster v. Hoban, 7 Cranch, 399. 3. Measure of Damages. —Where the vendor has done all that his contract calls for, it seems now to be well settled by good authority that upon the vendee's refusal to accept the deed tendered him, or to perform his part of the contract, and the purchase money remaining unpaid, the seller is not entitled to recover the whole amount of money agreed to be paid for the land, but only the difference between the contract price and the market value at the time of the breach, if at that time there was any decrease in such value. And where the defendant refuses to receive the deed and pay for the land, it is immaterial whether the plaintiff keeps or sells the land; and if he sells it, he is not bound to obtain defendant's consent to the sale, or to consult him in relation thereto: Old Colony R. R. Corp. v. Evans, 6 Gray, 25; S. C., Sedgwick on Damages, 36; Scudder v. Waddingham, 7 Mo. App. 26; Lewis v. Lee, 15 Ind. 500; Meason v. Kaine, 63 Pa. St. 335; Porter v. Travis, 40 Ind. 556, reviewing the cases; Robinson v. Heard, 15 Me. 296; see Dayton, W. V. & X.

T. Co. v. Coy, 13 Ohio St. 91, reviewing the cases; Griswold v. Sabin, 51 N. H. 167, reviewing the cases; Bowser v. Cessna, 62 Pa. St. 148; Laraway v. Perkins, 10 N. Y. 371; Ellet v. Paxson, 2 Watts & S. 418; Wilson v. Holden, 16 Abb. Pr. 133, where the time is extended to the bringing of the action. In the following cases it was held that actual damages might be recovered: Boardman v. Keeler, 21 Vt. 77; Adams v. McMillan, 7 Port. 73; Huber v. Burke, 11 Serg. & R. 238; Evrit v. Bancroft, 22 Ohio St. 172; Meason v. Kaine, 67 Pa. St. 126; Philadelphia W. & B. R. R. Co. v. Howard, 13 How. 317. In Pennsylvania, where one sold land for five thousand dollars, the vendee agreeing that the seller should have the advance over that sum, with interest and taxes, that he could sell the property for within five years, and on a certain day the seller notified the purchaser to sell the property, it was held that the price which it would have brought on that day in advance of the purchase price was the measure of damages, and not the difference between the highest price at which it could have been sold within the five years and the original consideration: Means v. Milliken, 33 Pa. St. 517. In auction sales made by administrators, executors, sheriffs, commissioners, etc., the notion that the vendor can retain the land and recover the purchase money too is repudiated, and the wholesome policy of the general rule is approved. Consequently, in such sales it has been held, where the vendee refuses to consummate his purchase, that the land may be resold, and that the difference between the price at which the land was first bid off and the price for which it sold at a subsequent and second sale, if less than the first bid, affords a good criterion of damages. This rule also includes additional expenses of the second sale: Adams v. McMillan, 7 Port. 73; Miller v. Collyer, 36 Barb. 250; Webster v. Hoban, 7 Cranch, 399; Bowser v. Cessna, 62 Pa. St. 148; Hutton v. Williams, 35 Ala. 503. But it is necessary that the second sale, as well as the first, should be conducted with fairness, and no means be resorted to which would impair the value of the land in the estimation of the public: Adams v. McMillan, 7 Port. 88; Bowser v. Cessna, 62 Pa. St. 148. Where part payment has been made by the vendee, the measure of damages seems to be the whole unpaid balance of the purchase money with interest: Sanborn v. Chamberlin, 101 Mass. 409. But after purchaser's breach of contract, if the land be sold under a foreclosure against the vendor, and there be a deficiency upon the sale with which the purchaser be personally charged, it is error to award to the vendor, as his damages, the difference between the contract price and the price of such forced sale, together with the amount charged upon him for the deficiency: Wilson v. Holden, 16 Abb. Pr. 133. The measure of damages should not be estimated from any profit made upon a subsequent sale of the land: Pennock v. Freeman, 1 Watts, 401; but the vendor ought to recover compensation for all the loss he has sustained by reason of defendant's refusal to perform the contract: Curtis v. Aspinwall, 114 Mass. 193. It is true that in Alna v. Plummer, 4 Me. 258, it was held that, where real estate was sold at auction, a written memorandum made by the auctioneer, and a deed tendered to the purchaser, which he refused, the measure of damages against him was the price at which the land was struck off, with interest; but this case was criticised in Old Colony R. R. Corp. v. Evans, 6 Gray, 25; S. C., 66 Am. Dec. 394; Sedgwick on Damages, 35; and upon more full consideration the rule was laid down as above, and to which the last case is cited. In other cases having nothing to do with auction sales, however, it is also true that decisions not in conformity with the ones laid down in the first part of this subdivision have been rendered, and which are contrary to the general rule, but they do not savor of its legal strength and solidity. Thus in Richards v.

Edick, 17 Barb. 265, it was held that, in an agreement relating to real estate, where the vendor tenders a deed and offers to perform, but meets with a refusal on vendee's part to perform his contract, the vendor may recover the purchase money in an action at law. In Devine v. Himer, 29 Iowa, 297, a case of land exchange, plaintiff recovered the value of the land which the contract required defendant to convey to him. In Marshall v. Haney, 4 Md. 508, S. C., 59 Am. Dec. 92, the value of the land at the time of the breach of the contract was held to constitute the measure of damages. In Goodpaster v. Porter, 11 Iowa, 161, where the obligor agreed to pay a price fixed on a day named for certain real estate if the obligee should elect to sell the same, it was held that the obligee, upon electing to sell, was entitled to recover the price named in the contract without regard to the value of the land at the time of such election. In Tripp v. Bishop, 56 Pa. St. 427, it was held that the measure of damages for vendee's breach of a parol contract to purchase land is not the price he agreed to pay; but that if the contract is in writing, and not within the statute of frauds, or if the contracting parties have done all that the statute requires, "there is no reason why a purchaser should not be held to pay what he promised; or in other words, why the price he undertook to pay is not the measure of damages for his breach of his contract." On validity of verbal contract, see Meason v. Kaine, 63 Pa. St. 339. And in Wells v. Abernethy, 5 Conn. 227, a case of land exchange, the court said: "The consideration of the contract is never the rule of estimating the damages for the breach of an express agreement. When by reason of a failure on the part of one of the contracting parties, or other legal cause, the contract is rescinded, either absolutely or at the election of the party injured, he may bring his suit for the consideration, and then it will be the measure of damages. But so long as the contract is open, and the action, as it necessarily must be, and as in this case it is, is brought upon it, the sum recoverable is the value of the thing stipulated at the time when and the place where it should have been performed." See the numerous cases there cited.

4. Evidence of Damage-Forfeiture of Deposit-Penalty-Similarity of Rule concerning Real and Personal Property.-In determining the market value of the land, the general cash value must be taken, and not its value for a particular purpose, or on time: Lewis v. Lee, 15 Ind. 500. This may be the value of the land sold at a subsequent and second sale, if such sale be conducted openly and fairly: Adams v. McMillan, 7 Port. 73; but the price at which the property may have been subsequently sold is not always proper evidence of its value; as in forced sales under foreclosure: Wilson v. Holden, 16 Abb. Pr. 133. Evidence of the second sale is competent, however, on the question of damages, when it is shown that there has been no material change in the market value of the property between the two sales: Croak v. Owens, 121 Mass. 28. And where the rule is applied that the value of the land at the time of vendee's breach of his contract constitutes the measure of damages, evidence of what its value was when the agreement of sale was made is irrelevant and inadmissible: Marshall v. Haney, 4 Md. 498; S. C., 59 Am. Dec. 92. A sum of money put up as a forfeiture does not release the purchaser from his obligation to take the property; but in an action by the vendor against him for not taking it, such sum will be considered by the jury in reduction of damages: Curtis v. Aspinwall, 114 Mass. 187; Huber v. Burke, 11 Serg. & R. 244. And where the forfeiture amounts to a penalty instead of stipulated damages, it will form no bar to such an action: See Richards v. Edick, 17 Barb. 260, in which the subject of forfeitures and penalties is discussed at length, and in which it is said that the burden of proof

that the parties intended a specified sum as stipulated damages is in him who maintains that side of the question, and he must establish it to the satisfaction of the court. When the vendee refuses to receive and pay for goods which he has contracted to purchase, the measure of damages which the vendor is entitled to recover is not ordinarily the contract price of the goods, but the difference between the contract price and the market price, or value of the same goods at the time when the contract was broken: Gordon v. Norris, 49 N. H. 376; Stevens v. Lyford, 7 Id. 360; Woodbury v. Jones, 44 Id. 209; Haines v. Tucker & Co., 50 Id. 307; McNaught v. Dodson, 49 Ill. 446; Schuebley v. Shirtcliff, 7 Phila. 236; Allen v. Jarvis, 20 Conn. 38; Hall v. Pierce, 4 W. Va. 107; Ganson v. Madigan, 13 Wis. 67; Chapman v. Ingram, 30 Id. 290; Lewis v. Greider, 49 Barb. 606; Hewitt v. Miller, 61 Barb. 567; Pollen v. Le Roy, 30 N. Y. 549; Dustan v. McAndrew, 44 Id. 72. And the same rule should be, and is, applied in case of contracts for the sale of real estate where the vendee refuses to receive the deed and pay the price according to the contract: Griswold v. Sabin, 51 N. H. 171, reviewing the cases; Adams v. McMillan, 7 Port. 88; Whiteside v. Jennings, 19 Ala. 791; Lewis v. Lee, 15 Ind. 499; Wells v. Abernethy, 5 Conn. 227; see Dayton, W. V. & X. T. Co. v. Coy, 13 Ohio St. 91, reviewing the cases.

5. Interest—Ejectment.—Where the vendee in a contract for the purchase and sale of real estate takes possession of the property as owner without having paid the purchase money, he is bound to pay interest: Stevenson v. Maxwell, 7 N. Y. 408. But where defendant has covenanted to convey land to plaintiff, by warranty deed, in consideration of other land granted to him by plaintiff, interest cannot be allowed by way of damages for the breach of such agreement until demand made by the plaintiff, succeeded by defendant's nonperformance: Wells v. Abernethy, 5 Conn. 222. In contracts for the sale of real estate the vendor holds the legal title as a security for the payment of the purchase money, "and in case of a persistent default in the payments, his better remedy, and under some circumstances his only safe remedy, is to institute proceedings in the proper court to foreclose the equity of the purchaser where partial payments or valuable improvements have been made. The court will usually give him a day, if he desires it, to raise the money, longer or shorter, depending on the particular circumstances of the case, and to perform his part of the agreement:" Hansbrough v. Peck, 5 Wall. 506. The vendor can maintain ejectment against vendee for unpaid balance of purchase money: Id.; Stokely v. Trout, 3 Watts, 163; Pennock v. Freeman, 1 Id. 401; but in such action plaintiff is only entitled to have a conditional verdict and judgment to be released upon the payment of the balance of the purchase money, at such time as the jury may prescribe. This rule, however, is peculiarly applicable to purchasers in possession, and who have made valuable improvements: Dixon v. Oliver, 5 Watts, 509.

6. Title to Land-Title to Purchase Money.-In support of what is deemed to be the just and true rule of damages in the case of an agreement for the purchase and sale of land, where the vendee refuses to perform his contract, viz., that it is the difference between the contract price and the actual market value at the time of the breach of the agreement, or at the time of trial if there has been any decrease in value, it is strongly argued that the title does not pass by a tender of the deed; nor does it pass by operation of law: Richards v. Edick, 17 Barb. 264; Alna v. Plummer, 4 Me. 258. The recovery of the purchase money cannot pass the fee of the land, and the legal seisin remains as at first. The vendor has not parted with his property, and if the land has not fallen in price he has lost nothing. In Scudder v. Wadding

ham, 7 Mo. App. 26, this question was referred to. There the defendant employed and authorized brokers to purchase from plaintiff, and the deed was tendercd to the brokers, who, it was alleged, accepted it as defendant's agents. Plaintiffs asked judgment for the purchase money. The court said: "That the mere brokers took the deed must, as against the pleader, be considered equal to an averment that the defendant refused to accept it. But further: even supposing that the brokers, being 'thereunto duly authorized,' etc., did accept the deed, it is not alleged that the defendant ever took pos session; yet if the purchase stopped short of completion, how can it be maintained that the property passed? If the vendee may refuse at one point, he may refuse at any. The tender of a deed is a step in the transaction, as the tender of a bill of sale might be for personal property; but if a bill is taken and the goods refused, does the property pass? On the basis of an ordinary action for damages, tender of a deed and refusal may be sufficient; for there is a breach, and the intention being shown, the vendor need not uselessly go further. But the vendee may refuse to complete the purchase by refusing to take the property. The property is then on the vendor's hands. The law, taking facts as it finds them, recognizes this. If the vendor retains the land or goods, the vendee is not to be fined in the amount of the purchase money. On the other hand, the injured party is to be compensated, not rewarded. He has his property; and his injury is the damage, measured in money, which he has suffered by the purchaser not taking it. If, indeed, the seller is not content with damages, he may have specific performance and get his purchase money. But he cannot get rid of the tests imposed by equity, by bringing a common-law action for the purchase price. At common law, upon a breach, his right of action accrues to him, and whether the mere subject-matter of the contract be lands or goods, the action is a personal right, which he may enforce until it is barred by the statute. But if the seller elects to take the purchase money, he must do so at once; and thus, on the basis that he is entitled to it, the money becomes his and the land becomes the property of the purchaser. The seller can become entitled to the purchase money only by, so far as in him lies, putting the purchaser in the seller's place. The seller cannot wait, as the argument of the plaintiffs implies he can, up to the time the right of action is barred by the statute of limitations, enjoying all the while the rents and profits of the estate, and then by a decree obtain the purchase money. The decree merely adds the sanction of equity to what was done by the parties, who, by their exchange, vested the title to the money in the seller and made the land the property of the purchaser. But it is only on the basis of prompt and persistent action to this effect on the part of the seller seeking his purchase money that he can obtain a decree."

7. Suits on Promissory Notes Given for the Purchase of Land.—Where a purchaser has given his promissory note for the payment of land which the vendor has agreed to convey to him, the vendor cannot sustain an action on the note where the property is so incumbered by judgments, etc., that it is impossible for the vendor to perform his agreement: Lyon v. O'Kell, 14 Iowa, 233; and the same is true where the aid of chancery is necessary to assist him in making title: Hulshizer v. Lamoreux, 58 Ill. 72. But if the vendee has gone into possession of lands which he has purchased and given his notes for, the vendor can maintain his action on the notes, and the vendee cannot avoid it on the ground that the vendor refuses to convey. The vendee's remedy is by compelling a performance: Freligh v. Platt, 5 Cow. 494; Chapman v. Eddy, 13 Vt. 205; Lewis v. McMillen, 41 Barb. 420. Neither can the vendee avail himself in such action of a partial want, or partial failure of consideration: