[No. 8206.

Department One.

January 4, 1910.]

#### Frank L. Crosby, *Respondent,*v. U. G. Wynkoop *et al., Appellants.**1*

Vendor and Purchaser — Title oe Vendor — Sufficiency. A contract to furnish, “a good title shown by abstract,” is not performed, and the vendee is not compelled to accept the title, where the vendors claimed under a deed from certain persons claiming to be heirs of another, who died many years ago without administration on her estate, and there was nothing of record to show who were her heirs at law except the *ex parte*affidavit of her husband.

Same — Contract—Performance—Failure of Title. Upon failure of the vendors to make a title good, under a contract of sale providing that if the title is not good or cannot be made good in ten days the contract shall be null and void and all payments made refunded, the purchaser is entitled to a return of purchase money, but cannot recover damages for breach of contract- to convey.

Same — Failure of Title — Measure of Damages. The measure of damages for breach of a contract of sale by reason of failure of the vendor’s title, is the purchase price paid with interest, where the vendor acted in good faith and without intentional fault.

Appeal from a judgment of the superior court for Pierce county, Clifford, J., entered January 5, 1909, upon the verdict of a jury rendered in favor of the plaintiff, for $1,000, in an action on contract.

Reversed and a new trial ordered unless $900 is remitted.

*Walter M. Harvey,*for appellants.

*Loveday, Kelley McMillan,*for respondent.

1

 Reported in 106 Pac. 175.

Rudkin, C. J.

This action was instituted to recover damages for a breach of the following contract of sale:

“Received from Frank L. Crosby the sum of One Hundred Dollars ($100), as earnest money, and part payment for the following described premises, situate in the county of Pierce, state of Washington to wit: The Southeast quarter (SE14) of the Northeast quarter (NE%), and the South half (S%) *476of the Northeast quarter (NE14) of the Northeast quarter (NE14) °f Section Twenty-two (22) in Township Twenty-one (21) North of Range three (8) East of the Willamette Meridian, containing (60) acres of land this day sold to the said Frank L. Crosby, for the sum of Six Thousand Dollars ($6,000), the balance of Fifty-nine Hundred' Dollars ($5900) to be paid as follows: The sum of Two Thousand Nine Hundred and Fifty Dollars on or before twenty days from this date, and Two Thousand Nine Hundred and fifty dollars on or before one year from this date. Deferred payments to bear interest at 6 per cent per annum until paid, and upon full settlement as stated above, I agree to deliver a bond for deed, conveying good title free from all encumbrances, as shown by a complete abstract of title, certified by a responsible abstracter, to be furnished by me, on or before ten days from this date, and to be examined by the said purchaser within ten days thereafter. If said abstract does not show such title, or cannot be made to do so within ten days from notice of defects, then this agreement to be void, and all payments hereunder shall be refunded. Otherwise, if the said purchaser refuses to complete the purchase in accordance with the terms hereof, all payments made shall be forfeited as commissions and compensation for examining property, abstract, and papers; but such forfeiture shall not impair the right of either party to pursue the usual remedies for breach of this contract.”

From a judgment in favor of the plaintiff in the sum of $1,000, the present appeal is prosecuted.

There is little controversy over what we deem the material facts. Within ten days after the execution of the contract, the vendors delivered to the purchaser a complete abstract of title certified by a competent abstracter. This abstract did not show good title in the vendors, nor could the title be made good within ten days from notice of defects. The land was originally patented to John Meeker, as the head of a family consisting of himself, his wife Elizabeth, and a daughter Margaret, pursuant to the sixth article of the treaty concluded on the 26th day of December, 1854, between Governor Stevens and the chiefs, headmen and delegates of certain Indian tribes, including the Puyallups. The appellants claim *477title under a deed from John Meeker and certain persona claiming to be the heirs of Elizabeth Meeker, his wife, who died many years ago. There was no administration upon the-estate of Elizabeth Meeker, and nothing of record to show that the appellants’ grantors were the heirs at law, or all the-heirs at law, of Elizabeth Meeker, deceased, except an *ex parte*affidavit filed for record in the office of the county auditor, entitled, “Jerry Meeker to the Public.” Under this, state of facts the appellants may have had a good title in fact, but they did not have such a title as they agreed to-convey; namely, a good title shown by abstract, and the respondent was not bound to accept it. *George v.*Conhaim, 38 Minn. 338; *Horn v. Butler,*39 Minn. *515; Howe v. Coates,*97 Minn. 385, 107 N. W. 397, 114 Am. St. 723, 4 L. R. A. (N. S.) 1170; *Brown v. Widen*(Iowa), 103 N. W. 158; *Smith v. Taylor,*82 Cal. 533, 23 Pac. 217; *Boas v. Farrington,*85 Cal. 535, 24 Pac. 787.

As the respondent was under no obligation to accept the-title tendered, he is entitled to recover the $100 paid on the-purchase price, with legal interest, unless he waived strict performance of the contract, and upon that issue the jury found in his favor. Aside from a return of the purchase money paid with interest, we do not think the respondent is entitled to recover for the loss of his bargain for two reasons. In the first place, the contract itself provides that if the title-is not good and cannot be made good, within ten days from notice of defects, the agreement to convey shall be null and void, and the purchase money refunded. Under the admitted facts in this case the record title was not good and could not be made good, and therefore, by the express terms of the-contract between the parties, the agreement to convey became null and void and no action would lie for its breach.

Again, this court held, after full consideration, in *Morgan v. Bell,*3 Wash. 554, 28 Pac. 925, 16 L. R. A. 614, that in actions of this kind, where the vendor acts in good faith and the failure of title arises from no intentional fault or wrong-*478on his part, the measure of damages is the purchase money paid with interest, or nominal damages where no payments have been made. That case was followed and approved in *West Coast Mfg. & Inv. Co. v. West Coast Imp. Co.,*31 Wash. 610, 72 Pac. 455, and *Babcock, Cornish*& *Co. v. Urquhart,*53 Wash. 168, 101 Pac. 713, and has become the settled law of this jurisdiction. We deem it unnecessary to refer to the numerous errors assigned in the appellants’ brief, further than to say that incompetent testimony was admitted and erroneous instructions given, but. we do not think that these errors were prejudicial in so far as the right of the respondent to recover the purchase money paid is concerned.

The judgment will therefore be reversed, with directions to grant a new.trial .unless-the'respondent: will remit from-the judgment all sums in excess of $100, and interest, together with costs in the court below, within thirty days after filing the remittitur there. The appellants will recover their costs in this court.

Fullerton, Chadwick, Gose, and Morris, JJ., concur.