(y) See authorities cited in the preceding note, and Bitner v. Brough, 11 Pa. 127; Handley v. Chambers, 1 Litt. 358; Blanchard v. Ely, 21 Wend. 346, 347j per Cowen, J.; Nourse v. Barns, 1 T. Raym. 77. So, where the party having title, refuses to convev it. Driggs v. Dwight, 17 Wend. 71; Baldwin v. Munn, 2 id 399, 406; or, having title at the time of the agreement, afterwards disables himself from completing it, by selling the land to a third party: Patrick v. Marshall, 2 Bibb, 47; Fisher v. Kay, 2 id. 434,440; Wilson v. Spencer, 11 Leigh, 261; or, at the time of the agreement, knew he had no title McConnell v Dun Lap, Hardin, 41.

(z) Hopkins v. Grazebrook, 6 B. & C. 31. See this case cited in Walker v. Moore, 10 B. & C. 416, and in Fletcher v. Button, 6 Barb. 650. The doctrine of Hopkins v. Grazebrook was affirmed in Robinson v. Harman, I Exch. 850. Parke, B, said. "The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed. The case of Flureau v. Thornhill qualified that rule of the common law. It was there held, that contracts for the sale of real estate are merely on condition that the vendor has a good title; so that, when a person contracts to sell real property, there is an implied understanding that, if he fail to make a good title, the only damages recoverable are the expenses which the vendee may be put to in investigating the title. The present case comes within the rule of the common law, and I am unable to distinguish it from Hopkins v. Grazebrook." So it has been held in this country, that, where the agreement is that a third person shall convey land, the measure of damages is the value of the land at the time when it should have been conveyed. Dyer v. Dorsey, 1 Gill & J. 440, Pinkston v. Huie, 9 Ala. 252. But see Tyrer v. King, 2 Car. & K. 149.

1 Yokom v. McBride, 56 la. 139; Drake v. Baker, 5 Vroom, 358, the latter a case of a vendor whose wife refused to sign the deed. - K.

2 Bain v. Fothergill, L. R. 7 H. L. 158, affirmed Flureau v. Thornhill and overruled Hopkins v. Grazebrook, supra. The rule laid down in Flureau v. Thornhill. "as to the limits within which damages may be recovered upon the breach of a contract for the sale of a real estate, must be taken to be without exception." Per Lord Cheimnford. Where A. surrendered part of his leasehold premises to B., thereby conferring a permanent benefit upon him, in return for which B. was to grant to A. the use of an entrance, to which B. had not yet got any title, and to which B., without any fault on his part, was unable to acquire title, it was held, that A. was not confined to nominal damages. Wall v. London Real Property Co. L. R. 9 Q. B. 249. - K.

he might refuse to complete the sale for the purpose of retaining to himself the enhanced value, (a)

If on such a contract the proposed vendee is sued, if he has taken the land, the measure of damages is, of course, the price with interest; if he has neither taken the land nor paid the price, in England, the plaintiff receives only nominal damages, unless the land has fallen in value, or he has otherwise suffered actual injury, on the ground that if he recovered the full price, he would have that and the land too; because the recovery * cannot have the effect of passing the fee of the land, (b) In this country, some cases have thrown doubt on this rule, but upon the whole we think it well established, (c)

(a) Hopkins v. Lee, 6 Wheat. 109. See also Cannell v. M'Clean, 6 Harris & J. 297; Nichols v. Freeman, 11 Ired. 99; Bryant v. Hambruck, 9 Ga. 133, Whiteside v. Jennings, 19 Ala. 784; Hill v. Ho-hart, 16 Me. 164; Warren v. Wheeler, 21 id. 484. In some of these cases the doctrine of those American cases, cited supra, note (x), that actions on a covenant to convey, are so far analogous to those upon covenants for title that the damages should he measured by the same rule, is rejected. In Nichols v. Freeman, the defendant was prevented from giving a good title by a levy of execution upon the land, and there appears to have been no fraud on his part. The value of the land at the time of the breach was regarded as the measure of-damages. Pearson, J., saids "Our attention has been called to the fact, that, in the action for a breach of a covenant of quiet enjoyment, the measure of damages is the price paid for the land, which is taken, as between the parties, to be the true value. . . . The analogy does not sustain the position for which it was invoked; because the rule of damages in that action is founded on peculiar reasons. The covenant for quiet enjoyment is a substitute for the old real warranty, the remedy upon which was by Toucher, and if the demandant recovered, the tenant had judgment against the voucher for other lands of equal value." See also the very able decision of Buchanan, C. J, in Cannell v. M'Clean. And even in New York some doubt seems to have been thrown upon the rule laid down in Baldwin v. Munn, cited supra, note (or), in the late case of Fletcher v. Button, 6 Barb. 646; where, under a verbal contract, land is to be conveyed in consideration of a specific sum payable in work, the vendee, who has performed the work, may consider the agreement as * anility, and recover the value of his work, not exceeding the sum specified, with interest; and he can only resort to evidence of the value of the land as a measure of damages, when no sum is specified. King v. Brown, 2 Hill, 485; Burlingame v. Burlingame, 7 Cowen, 92; Rohr v. Kindt, 3 Watts & S. 563; Jack v. McKee, 9 Fa. 235; Bash v. Bash, 9 id. 260. See Boardman v. Keeler, 21 Vt. 84.

(b) In Hawkins v. Kemp, 3 East, 410; in Goodisson v. Nnnn, 4 T. R. 761, and in Glazebrook v. Wood row, 8 id. 366, it seems to have been assumed that the vendor, on tender of a conveyance, could recover the amount of the purchase-money. But in the late case of Laird v. Pim, 7 M. & W. 474, where the vendor had offered to execute a conveyance, and was " in the same situation, for the purpose of recovering damages for the nonpayment of the price, as if all had been done by him" it was said by Parke, B., in delivering the opinion of the court: "The measure of damages, in an action of this nature, is the injury sustained by the plaintiff by reason of the defendants not having performed their contract. The question is, How much worse is the plaintiff by the diminution in the value of the land, or the loss of the purchase-money, in consequence of the non-performance of the contract? It is clear that he cannot have the land and its value too. A party cannot recover the full value of a chattel, unless under circumstances which import that the property has passed to the defendant, as in the case of goods sold and delivered, where they have been absolutely parted with and cannot be sold again."