There is no reason on principle why the measure of damages for breach of contracts for the sale of land should differ from that applied to contracts for the sale of personal property. Some courts, however, make a difference where the action is by

37 See Oldham v. Kerchner, 79 N. C. 106, 28 Am. Rep. 302, where, however, the rate was stated.

38 See supra, Sec.Sec. 1342, 1343.

39 So it was held in Cole v. Rosa, 9 B. Mon. 393, 50 Am. Dec. 517.

40 Brooks v, Hubbard, 3 Conn. 58, 8 Am. Dec. 154; McKinnie v. Lane, 230 111. 544, 82 N. . 878, 120 Am. St. 338; Heywood v. Heywood, 42 Me. 229, 66 Am. Dec. 277; Gleason v. Pinney, 5 Cow; 152; Pinney v. Glea-son, 5 Wend. 393, 21 Am. Dec. 223; Trowbridge v. Holcomb, 4 Oh. St. 38; Church v. Feterow, 2 Penn. 301; Fleming v. Potter, 7 Watts, 380; White v. Tompkins, 52 Pa. 362; Short v. Abernathy, 42 Tex. 94; Perry r. Smith, 22 Vt. 301. See also Plowman v. Riddle, 7 Ala. 775. In Goodwin o. Heckler, 252 Pa. 332, 97 Atl. 475, 476, the court said: "When the payment of a debt is to be made in a specific article of property, failure to pay or offer to pay by delivery of the article, according to agreement, fixes the liability of a debtor to pay in money. Roberts v. Beatty, 2 Pen. & W. 63, 21 Am. Dec. 410; Stewart v. Morrow, 1 Grant Cas. 204; Santee v. Santee, 64 Pa. 473, 479; Moore v. Kiff, 78 Pa. 96. In delivering the opinion in the case last cited, Mr. Justice Paxson said (78 Pa., page 100):

" 'Nor is the fact that the interest notes were payable in pork and sugar material, unless there had been an offer to show payment in those particular commodities. The defendants had a right to pay in pork and sugar. An offer to do so would have been a sufficient answer to a demand for payment. But a failure to show either payment, or an offer of payment, in these articles, fixes the liability of the defendants to pay in money.'" the purchaser. It was established in an early leading case,41 that for breach of an agreement to convey a leasehold estate because of the vendor's lack of title, the purchaser was entitled to recover merely the amount of a deposit which he had made on account of the price. Blackstone, J., said:' "These contracts are merely upon condition frequently expressed, but always implied, that the vendor has a good title. If he has not, the return of the deposit, with interest and costs, is all that can be expected." This decision has been consistently followed in England and the chief point in dispute has been whether if the vendor knew or ought to have known that his title was defective his obligation even then remained merely to restore the purchaser to his original position. It has finally been settled that even in case the vendor knew he had no title or means of getting title his liability is limited to the restitution of any deposit made by the purchaser and any expenses incurred by him in examining the title; 42 and the opinion was expressed that if the vendor was guilty of fraud the appropriate remedy was an action for deceit. The English doctrine is followed with slight qualification in a few American States.43 In most American cases, however, which purport to follow the English authorities, the rule restricting damages to those appropriate for rescission is limited to cases where the vendor has not been guilty of bad faith.44 Another exception to the English

41 Flureau v. Thornhfll, 2 Wm. Bl. 1078.

42 Bain 9. Fothergill, LR7H.L 158; Rowe v. Schoolboard, 36 Ch. Div. 619, 622.

43 Tyson v. Eyrick, 141 Pa. 296, 311, 21 AtL 635, 23 Am. St. Rep. 287; Rineer v. Collins, 156 Pa. 342, 27 AtL 28; Glaese v. Stewart, 32 Pa. Super. 385; Stuart v. Pennis, 100 Va. 612, 42 S. E. 667; Gerbert v. Trustees, 59 N. J. L. 160, 180, 35 AH. 1121, 69 L.R. A. 764,59 Am. St. Rep. 578 (but see Brown v. Honiss, 70 N. J. L. 260, 58 AtL 86, 74 N. J. L. 501, 68 AtL 150). In Pennsylvania in the case of actual fraud on the part of the vendor in the origin of the contract damages based on the value of the land may be recovered. Thompson v. Sheplar, 72 Pa. 160. A subsequent fraudulent purpose is not enough. Stephens v. Barnes, 30 Pa. Super, 127. 44 Clark v. Yocum, 116 Cal. 515, 48 Fac. 498; Sanford v. Cloud, 17 Fla. 532; Foley v. McKeegan, 4 la. 1, 66 Am. Dec. 107; Donner v. Reden-bough, 61 la. 269, 16 N. W. 127; Tracy v. Gunn, 29 Kan. 508; Davis v. Lewis, 4 Bibb, 456; Rutledge v. Lawrence, 1 A. K. Marsh. 396; Baltimore, etc., Society v. Smith, 54 Md. 187, 39 Am. Rep. 374; Horner v. Beasley, 105 Md. 193, 65 Atl. 820, Northridge v. Moore, 118 N. Y. 419; 23 N. E. 570; Empire Realty Co. v. Sayre, 107 N. Y. App. D. 415, 422, 95 N. Y. S. 371; Dal v. Fischer, 20 rule is occasionally made where the vendor, though not guilty of bad faith since he expected, and perhaps reasonably, to be able to acquire title, nevertheless knew that he did not have title at the time of the contract.46 It also seems true even where the rule of restricted damages prevails that if the purchaser has paid in advance the consideration in a form which cannot be restored to him, he may recover the value of the land, and is not restricted to the value of what he has given,46 and the same is held in Pennsylvania whatever the nature of the consideration, if it has been paid.47 If the defect in the vendor's title might be removed by him and he fails to perfect the title or voluntarily makes it impossible to do so, he is liable in England and in other jurisdictions where the English rule is followed, in substantial damages.48 Under the rule generally prevailing in the United States, however, all these distinctions are unimportant, and the only rule defensible on principle, allowing the purchaser the difference between so much of the contract price as is unpaid and the market price of the land, is applied in every case where the vendor breaks his contract without legal excuse.49 This rule is one of general jurispru-

S. Dak. 426, 107 N. W. 534; Johnson v. Hamilton, 36 Tex. 270; Clifton v. Charles, 53 Tex. Civ. App. 448, 116 S. W. 120; Hahl ». West (Tex. Civ. App.), 129 S. W. 876; Morgan v. Bell, 3 Wash. 554, 28 Pac. 925; Mullen v. Cook, 69 W. Va. 456, 71 S. . 556; Arentsen v. Moreland, 122 Wis. 167, 99 N. W. 790, 66 L. R. A. 973, 106 Am. St. Rep. 951.

45 Cullumber v. Winter, 154 la. 263, 134 N. W. 601; Tulane Ac. Adm's v. Baocich, 129 La. 469, 56 So. 371; Drake v. Baker, 34 N. J. L. 358 (but see later New Jersey decisions, infra, n. 48); Pumpelly v. Phelps, 40 N. Y. 59,100 Am. Dec. 463. If the purchaser also knew the condition of the vendor's right, the exception allowing him substantial damages is not applied. Cullumber v. Winter, 154 la. 263, 277, 134 N. W. 601.

46 Wall v. London, etc., Co., L. R. 9 Q. B. 249. See also Case v. Woloott,

33 Ind. 5; Doty's Adm. 9. Doty's Guardian, 118 Ky. 204, 80 8. W. 803, 2 L. R. A. (N. S.) 713.

47 Cox v. Henry, 32 Pa. 18.

48 Williams v. Glen ton, L. R. 1 Ch. 200; Engel v. Fitch, L.R.3Q. B. 314; L. R. 4 Q. B. 659; Bain v. Fother-gill, L. R. 7 H. L. 158, 209; Clark v. Yocum, 116 Cal. 515, 48 Pac. 498; Brown v. Honiss, 70 N. J. L. 260, 58 Atl. 86, 74 N. J. L. 501, 68 Atl. 150; Noyes v. Phillips, 60 N. Y. 408.

49Harten v. Ltfffler, 212 U. S. 397, 53 L. Ed. 568, 29 Sup. Ct. 351; Hampton Stave Co. v. Gardner, 154 Fed. 805, 83 C. C. A. 521; Hopkins v. Lee, 6 Wheat. 109, 118, 5 L Ed. 218; Phelan v. Tomlin, 164 Ala. 383, 51 So. 382; Jamulewyes v. Quagliano, 88 Conn. 60, 89 Atl. 897; Irwin *. Askew, 74 Ga. 581; Plummer v. Rigdon, 78 HI. 222, 20 Am.Rep. 261; Dady v. Condit, 188 111. 234, 58 N. E. 900, 209 111. 488, 70 N. E. 1088; dence which the federal courts will apply, regardless of the rulings of state courts where the question arose.50 Where the purchaser makes total default the general rule both in England and the United States allows recovery of the difference between the contract price and the market price as in the case of personal property.51 But, also following the analogy of actions for the price of goods, a few American courts in effect allow specific performance at law by permitting the recovery of the full price after a proper deed has been tendered.52 The excuse for such recovery in the case of goods 53 does not however exist in the case of land. The vendor does not need such relief since he can unquestionably get specific performance in equity, and furthermore neither tender of the land nor judgment for the Paterbaugh v. Puterbaugh, 7 Ind. App. 280; Doriocourt v. Lacroix, 29 U. Ann. 286; Doherty p. Dolan, 66 Me. 87, 20 Am. Rep. 677; Boyden v. Hill, 198 Mass. 477, 85 N. E. 413; Fleckten v. Spicer, 63 Minn. 454, 65 N. W. 926; Vallentyne v. Immigration Land Co., 95 Minn. 195, 103 N. W. 1028; Turner v. Lord, 92 Mo. 113, 4 S. W. 420; Cartin v. Hammond, 10 Mont. 1, 24 Pac. 627; Beck v. Staats, 80 Neb. 482,114 N. W. 633,16 L. R. A. (N. 8.) 768; LeRoy p. Jacobsky, 136 N. G. 443, 48 S. E. 796, 67 L.R. A. 977; Mackey v. Olssen, 12 Ore. 429, 8 Pac. 357; Barbour v. Nichols, 3 E. I. 187; Shaw v. Wilkins, 8 Hump. 647, 653, 49 Am. Dec. 692; Dunahee 9. Geoghegan, 7 Utah, 113, 25 Pac. 731; Cade v. Brown, 1 Wash. 401, 25 Pac. 457; Brink v. Mitchell, 125 Wis. 416, 116 N. W. 16.

50Clark v. Belt, 223 Fed. 573, 138 C C. A. 1, and cases cited.

51 Laird v. Pirn, 7 M. & W. 474; Eastern Counties Ry. Co. v. Hawkes, 5 H. L. C. 331, 376; Telfener v. Russ, 145 U. 8. 522, 36 L. Ed. 802, 12 Sup. Gt 930; Drew v. Pedlar, 87 Cal. 443, 25 Pac. 749, 22 Am. St. Rep. 257; Bead v. Dougherty, 94 Ga. 661, 20 8. E. 965; Cowdery v. Greenlee, 126

Ga. 786,55 S. E. 918,8 L. R. A. (N. S.) 137; Goodwine v. Kelley, 33 Ind. App. 57, 70 N. E. 832; Prichard v. Mul-hall, 127 la. 545, 103 N. W. 774; Waters v. Pearson, 163 la. 391, 144 N. W. 1026; Allison v. Cooke's Ex'rs, 112 Ky. 212, 65 S. W. 342, 66 S. W. 392; Old Colony R. Co. v. Evans, 6 Gray, 25, 66 Am. Dec. 394; Stewart v. McLaughlin, 126 Mich. 1, 85 N. W. 266; Scudder v. Waddingham, 7 Mo. App. 26; Griswold v. Sabin, 51 N. H. 167, 12 Am. Rep. 76; Bensinger v. Erhardt, 74 N. Y. App. Div. 169, 77 N. Y. S. 577; Dayton Ac. Co. r. Coy, 13 Ohio St. 84,90; Hogan v. Kyle, 7 Wash. 595, 35 Pac. 399, 38 Am. St. Rep. 910.

52 Gray v. Meek, 199 111. 136, 64 N. E. 120; Goodpaster v. Porter, 11 Iowa, 161; Oatman v. Walker, 33 Me. 67; Curran v. Rogers, 35 Mich. 221; Granchot v. Leach, 5 Cow. 606; Shannon v. Comstock, 21 Wend. 457, 34 Am. Dec. 262; Richards r. Edick, 17 Bard. 260; Murray v. Ellis, 112 Pa. 485, 3 Atl. 845; Bailey v. Clay, 4 Rand. 346. The Iowa and New York decisions are in effect overruled by the cases cited in the previous note.

53 See supra, Sec.Sec. 1365 et seq.

full price nor payment of the judgment can operate to transfer title to real estate, as it can of chattels.