CHARLESTON.

#### Alice Mooring *v.*Wealthy G. Warnock and R. M. Warnock

Submitted February 19, 1924.

Decided February 26, 1924.

1. Vendor and *Purchaser*— Measure *of Damages for Breach of Land Contract Stated.*

In an action at law to recover damages for breach of an executory contract in writing for sale of land, where the: 1 reach is caused by fraud or misconduct on the part of defendant, the vendor, the measure of damages is the difference between the value of the land at the time of the contract and its? value at the time of the breach, (p. 544).

2. *Same*— Measure *of Damages for Breach of Land Contract 'Without Fraud Stated.*

If there be no fraud, or what amounts to fraud, on the part of the vendor, the measure of damages is the purchase money paid, with interest; and if no purchase money has been paid! the damages are nominal, (p. 543).

3. *Same*— Generally *Best Evidence of "Value of Land is Agreed Price.**

Generally, the best evidence of the value of the land is the price agreed upon at the time of the contract, (p 543').

4. *Same*— Verdict *for More Than Purchase Price for Breach of Contract Without Competent Evidence of Value of Land: Should*be *Set Aside.*

In such action if there be no competent evidence of the value of the land at the time of the alleged breach,, and no evidence tending to show it, a verdict for more than the purchase money paid, if any, with interest, or more than nominal damages, where no purchase money has been paid, has no basis, and should be set aside, (p. 544).

5. *Same*— Vendee *Cannot Recover for Breach of Land Contract Unless Performance Shown.*

In such action before the vendor can recover he must show that he has performed on his side every condition precedent stipulated for in the written contract, (p. 545).

Error to Circuit Court, Cabell County.

Action by Alice Mooring against 'Wealthy G-. Warnoek and another. Judgment lor plaintiff, and defendants bring error.

*Reversed, verdict set aside, and new trial awarded.*

*Sanders & Smoot*and *J. H. Stricklin,*for plaintiffs in error.

*540Lively, Judge:

This action is in assumpsit to recover damages for breach ■of an executory contract in writing for the purchase of real ■estate in the city of Huntington. The declaration alleges ■damages in the sum of $5,000. The verdict and judgment is for $400; to which judgment this writ was awarded.

Plaintiff, Alice Mooring, owned a lot 30x125 feet fronting ■on Minton street in the city of Huntington, on which was •erected a small dwelling. It appears that there were two deeds of trust, or liens, against this property, the exact •amount of which the record does not disclose. Defendant, Mrs. Wealthy G-. Warnock, also, owned a lot of land on Eleventh street in said city, which she had recently purchased from W. IT. Kincaid, on which was erected a larger dwelling house and on which a lien for purchase money amounting to $6,500 existed in favor of Kincaid. It will be- observed that ■each of the parties owned equities in their respective properties. Through the agency of a female real .estate agent, Mrs. Inman, a contract in writing was entered into between Mrs. Mooring and Mrs. Warnock and her husband for a mutual exchange of these properties, dated the 17th day -of March, 1922. In this agreement the Warnocks sold their house and lot to Mrs. Mooring at the price of $8,500, to be ■paid in part by a conveyance tq them from Mrs. Mooring •of her house and lot, the value of which is not stated. The residue of the purchase price of the Warnock property was to be paid by Mrs. Mooring in discharge of the Kincaid lien, which was represented by Warnock’s notes to Kincaid payable at the rate of $65 per month. It was stipulated that if any difference should exist in the equity in the property which the Warnocks agreed to convey, and the equity in the property which Mrs. Mooring agreed to convey, the latter should execute her note for such difference to the Warnocks payable one year from date. The Warnocks agreed to execute a deed for their property within ten days from the date of the contract, providing Mrs. Mooring was ready to deliver to them an apt and proper deed for her property and to execute and deliver notes for the residue of the purchase price, if any. The terms of the agreement were formulated *541on the 16th of Mareh, 1922, but the writing was not formally executed, until the next day, on the morning of which latter-day Mrs. Mooring inspected the house of the Wamocks and was shown over it by Mrs. Kincaid who then occupied the-house; and when it developed that the Kincaids would continue to occupy the property until they had built a new house then in contemplation or then being erected. After-her inspection of the property the agreement) was formally executed. On the 18th of March, Mrs. Inman, who seemed to be anxious to have the deal closed, there being a commission coming to her of $200, had attorneys prepare two deeds for the mutual exchange of the two properties. Mrs. Mooring- and her husband signed and acknowledged the deed of their property to Mrs. Warnoek on the 20th day of March, 1922. It appears that Mrs. Inman took the deed from the WarnocEs-so prepared to them for execution and insisted upon it being-signed. They raised some objection to the form of the deed, and asked that it be corrected and the deed was taken by War-noek to the attorney for that purpose, but was not immediately corrected. It does not appear that the Mooring deed signed and acknowledged had ever been tendered to or submitted to Warnoek; nor was a note executed or tendered to-him by Mrs. Mooring, or Mrs. Inman for her, for the difference in the equities, if any existed in the exchange of the-properties. The -value of the Mooring property was not stated in) the agreement, and there is nothing to- show the amount of the liens against it nor the value of her equity therein. After some delay in which the attorney said he-made various efforts to induce the Warnocks to sign the deed prepared by him for their property, Mrs. Mooring, or at least Mrs. Inman for her, became insistent that the deal be-closed and they both state that Mr. Warnoek refused to complete the deal and execute his deed. Mrs. Inman says he-gave as a reason that he could make more money out of his; property by holding it, and Mrs. Mooring says he came to her both before and after her suit was instituted and tendered back her check for $10 which she had given him, presumably on the day the trade was made, and stated on both occasions that he would not complete the contract by the execu*542tion of bis deed. Sbe also stated that sbe would not have taken tbe Warnock bouse while it was occupied by tbe Kin-caids. This statement by ber was stricken out by tbe court, and is one of tbe points of error insisted upon by defendant. We pause here to say that we do not tbink this was prejudicial error. iSbe was insisting upon tbe exchange of tbe properties and tbe completion of tbe contract from tbe day it was made; bad executed ber deed and was insisting upon execution of tbe deed to ber by the Warnocks. Her declaration, above set out, would have little weight against these insistent offers and efforts to get title to tbe property. Tbe suit was instituted on tbe 10th day of April following. While it was pending and after tbe Kincaids moved out of tbe bouse some time in June, Warnock tendered to Mrs. Mooring a deed for bis property and asked for ber deed and an ascertainment of tbe value of tbe equities. He then desired to complete tbe contract. This was refused by ber because sbe bad then instituted ber suit.

There is much evidence in tbe record tending to show that Warnock did not refuse to carry out tbe agreement and that tbe delay was occasioned by inaccuracy in) tbe papers prepared for its consummation. He and bis wife both say they never refused to carry out tbe contract. It is unnecessary to detail this evidence for tbe defense because tbe jury has found for tbe plaintiff and has concluded that defendants breached tbe agreement. Some time after Mrs'. Mooring refused to accept bis deed and close tbe contract (bow long afterwards is not shown) tbe Warnocks exchanged their property with another person for a smaller and less expensive dwelling in another part of tbe city. Warnock says this exchange was less beneficial to him than if be bad traded with plaintiff; and be is confirmed in that statement by Pilcher, a real estate agent. Mrs. Inman, who seems to be tbe principal witness for plaintiff, thinks tbe later exchange made by Warnock was of greater value to him than tbe contract made with Mrs. Mooring. Sbe said sbe “figured it out” to that conclusion.

Tbe errors complained of are: (1) that tbe demurrer to tbe declaration should have been sustained; (2) that tbe *543court erred in striking out the testimony of Mrs. Mooring that she would not have taken the property as long as the Kincaids remained therein; (3) that it was error to refuse to grant the motion for a new trial, because the verdict was contrary to the law and evidence; as no proper measure for damages was shown.

We think the declaration is sufficient. It contains the common counts; and a special count which sets out the contract in full and charges that defendants did not perform that contract but that plaintiff did keep and perform her part thereof in all respects, according to the tenor and effect and true intent and meaning thereof, and that by failure of defendants to perform said contract plaintiffs have become indebted to her in the sum alleged and refused to pay although often requested, by which' she is damaged to the amount alleged. It is claimed by plaintiffs in error, the Warnoeks, that the declaration should have charged that the equities in the respective properties under the contract had been ascertained and a note for the difference therein executed and tendered by 'Mrs. Mooring in the performance thereof. This objection, we think, would be properly addressed to a defect in the evidence to sustain the deelai’ation, and not as a defect in the declaration. As above set out, plaintiff in her declaration says she has performed her part of the contract in every respect according to the true intent thereof. Whether she has done so is a matter of evidence under her allegation. The second point of error with regard to the evidence of Mrs. Warnoek, stricken out by the court, has been discussed above.

The third point of error, we think, is well taken. The measure of damages for breach of an executory contract for the sale of real estate, where the breach is caused by fraud, or a wilful refusal of the vendor to carry out the contract, or where he has deeded his property away or done some act voluntarily by which he renders it impossible for him to transfer the property and carry out the contract, is the difference between the value of the land at the time of the contract and its value at the time of the breach. It will be observed that the breach of the contract as claimed by plaintiff was within a few days after the agreement was made, possibly within -the ten days in which the parties stipulated for the execution *544of the deeds. The suit was instituted within less than a month after the date of the contract. We find no evidence whatever of the value of the Warnocks’ property at the time of the alleged breach; neither do we find any evidence fixing" the value of the Mooring property at the time of the agreement or at the time of the breach. Mrs. Mooring does not attempt to state any values; she bases her damage upon the fact that she did not get immediate possession of the property contracted for, saying that she desired a larger house and that she wanted an invalid married daughter to reside with her and that a larger house than the one she then occupied would permit, her to do so. Mrs. Inman, the female real estate agent, says Warnock held his property at the price of $10,000, and that she considered it worth that much in the summer following the trade.. There is nothing in her testimony which would show the value of this property either at the time of the contract or at the time of the alleged breach. She is the only one who testifies upon this point. It is well settled in this state 'and by decisions of the supreme court of Virginia rendered before the formation of this state and binding upon us, that where there is an executory contract for the sale of land and it is breached and there is no fraud or what amounts to fraud on the part of the vendor the measure of damages is the purchase money paid, if any, with interest; and if no purchase money has been paid the damages are nominal. *Hoon*v. *Hyman,*87 W. Va. 659; *Mullen*v. *Cook,*69 W. Va. 456; *Thompson*v. *Guthrie,*9 Leigh 101; *Wilson*v. *Spencer,*11 Leigh 261; and in such cases it is generally conceded that the best evidence of the value of the land at the time of the purchase is the purchase money price agreed upon by the parties. *Stout*v. *Jackson,*2 Rand. 132; *Newbrough*v. *Walker,*8 Gratt. 16.

In view of the verdict it may be considered that the War-nocks breached the contract wilfully without good excuse a short time after it was made, and in such cases the measure of damages is/ the difference between the value of the land at the time of the contract and the value at the time of the breach. *Mullen*v. *Cook, supra; Wilson*v. *Spencer supra; Butcher*v. *Peterson,*26 W. Va. 447; 2 Minor’s Inst. p. 781. It is apparent that there was no basis of damages on which *545tbe jury could find a proper verdict; and it is also apparent that their verdict exceeds mere nominal damages for the amount, if any, paid with its interest. While it seems that a check for $10 was given by Mrs. Mooring to Warnocks about or at the time of the contract, it is not by any means clear that this check was ever cashed. The record is silent on that point.

No instructions were given to the jury, and they were left to imagine what, if anything, the damages should be.

There is another reason why this verdict and judgment cannot stand. There is nothing whatever to show that the plaintiff performed her part of the agreement by ascertaining the difference between the equities, if any existed, and by tendering a note therefor. A purchaser cannot maintain an action at law against his vendor for a breach of an executory contract for the sale of land unless he shows that he has performed on his side every condition precedent stipulated for in the contract. The execution and delivery of the deed and the payment of the purchase price either in money or by notes in accordance with the contract are mutual and dependent and are to be performed simultaneously. *Baird*v. *McAllister,*33 W. Va. 738. We think it was necessary that Mrs. Mooring should have executed or show some excuse for not executing her note payable one year after date for the difference in the equities, if any, as provided in the contract at the time she required Warnocks to execute and deliver their deed. There is nothing in the record showing that she had at any time ascertained the difference, if any, in the equities. It is true that Warnock did not rely upon this as a reason for not executing his deed at the time of the refusal. However, he and his wife testify that they did not know, and it had never been ascertained or attempted to be ascertained, what the debts were against the Mooring property. They say they asked Mrs. Mooring to tell them, and she was uncertain about it. However, we do not think the plaintiff would be excused under the circumstances from performing or offering to perform the* stipulations in her contract. On a new trial this defect in the evidence may,be cured; or good reason excusing her from performing the conditions of the contract may appear.

*546Because of want- of proper evidence on which, the jury could base a verdict for the damages which they have given, the verdict will be set aside, the judgment reversed and the case remanded for a new trial.

*jReversed; verdict set aside; new trial awarded.*