#### CULPEPPER LEE *vs.*WILLIAM RUSSELL.

Where an action is brought for a breach of contract in not conveying land according to the contract, it is not necessary for the plaintiff to bring into Court the price agreed to be given for the land, if he shews he complied with his part of the contract by tendering- what he was bound to pay.

Appeal from the Superior Court of Law of Lineóla County, at the Fall Term, 1847, his Honor Judge Pearsost, presiding.

The action is debt on a bond with condition, which, after reciting that the plaintiff had that day sold and conveyed to the defendant *a*tract of land, therein described, for the price of $448, 50 proceeds thus, “now,if the said Lee shall within two years from this date pay to the said Russell, the said sum of $448 59, and the said Russell, shall then convey the foregoing land to the said Lee, or if the said Lee shall not comply with the foregoing conditions within the said term of two years, then this obligation to be void, but otherwise to remain in full forced'

The breach assigned is, that, on a certain day, within the two years, the plaintiff tendered the sum of *$448 59,*to the defendant and requested him to convey the land, and that the defendant refused. Pleas, conditions performed and conditions not broken. On the trial the plaintiff gave evidence, that he tendered the money and* demanded the deed, as alleged in the declaration; and that the defendant refused to receive the money and execute a deed, saying, that he was entitled also to interest on the money. The plaintiff gave further evidence, that the land was worth $450, and that the defendant had received rents for the land, during the two years, exceeding the interest.

*527The counsel for the defendant thereon insisted, that, besides the avei'ment of the tender of the price, the declaration ought to have averred that the plaintiff had been always ready and was still willing and ready to pay the money, and that it should have been brought into Court. A verdict was taken for the plaintiff’s damages, one dollar, subject to the opinion of the Court upon the point made; and, afterwards the Court set aside the verdict and ordered a nonsuit, and the plaintiff appealed,

*Coleman*and *Thompson,*for the plaintiff.

*Barringer, Osborne,*and *li. C. Jones,*for the defendant,

Ruffin, C. J.

There would be more in the objections, if the plaintiff was to recover in this action the land'or a conveyance of it, as justice would require, that he should, in that case, pay the price, as when in equity there is a decree for specific performance. But that is not the natui e of the action, which is for damages for the non-performance of the agreement on the part of the defendant, namely, by his not receiving the price and conveying the land. It is not in affirmance of the contract, but for a breach of it, and it supposes the plaintiff to keep his money and the defendant to keep the land, and the'plaintiff seeks his redress in damages for the loss sustained by him from that state of things, arising from the fault of the defendant in not performing his engagement, after the plaintiff had complied with the prior condition on his part. The measure of those damages is, obviously, the difference between the sum the plaintiff was to have given for the land, which in the event, however, he did not give, and the value of the land he would have got, if the defendant had conveyed. It would therefore be to no use to bring the money into Court. For, if that were required, then the plaintiff ought to recover the whole value of the land, and be allowed to take back his money in part thereof: which is precisely the same thing asnotbring-*528ing it in at all, and having his damages assessed for the difference between it and the value of the land. It is apparent then, that the nature of the action was misconceived ; for, certainly, it would comport neither with justice nor law, that the purchaser should bring in the whole price for the vendor, and then get damages of one dollar, as here. As the plaintiff does not get the land nor its value, he is not bound to pay for it, nor, consequently, to keep the money ready for that purpose.

The judgment must therefore be reversed, and judgment entered for the plaintiff according to the verdict.

Per Curiam. Judgment reversed.