Yates v. James

Paterson, J. —On November 15, 1884, the parties to this action entered into a verbal agreement, by the terms of which the defendant agreed to convey the land in controversy to the plaintiff upon the payment to him by plaintiff of the sum of three hundred dollars, which was to be paid on or before the end of four years from, the date of the contract.

The court found that at the time the contract was made the defendant was, and ever since has been, the owner in fee-simple of the property; that immediately after the contract was entered into, defendant delivered the possession of the property to the plaintiff in pursuance of the agreement, and that plaintiff has ever since held the same, and has placed thereon improvements amounting in value to the sum of $280; that defendant saw the improvements as they were made, and offered no objection thereto; that the land has increased in value over the price agreed to be paid to defendant $250 per acre; that before the expiration of the four years, to wit, on or about November 11, 1887, plaintiff offered in writing to pay defendant the full sum of $300, but defendant refused to accept the offer, and declared that he would not make a deed to the land; that plaintiff has performed all the conditions of the contract on his part to be performed; that forty dollars is the value of the use and occupation of the premises, which consist of three acres; that plaintiff has received from the sale of wood taken from the premises the sum of thirty-six dollars. The court further found that on September 2, 1884, defendant executed and filed a declaration of homestead, claiming as a homestead, together with other [476]lands, the lands in controversy, and that the same has not been abandoned.

■It will be seen from the findings of the court that the plaintiff was allowed as damages $750, the enhanced value of the land, and the sum of $280, the value of his improvements, amounting in all to $1,030. From this amount the court deducted the sum of sevent)-six dollars, that being the amount received from the sale of wood, and the value of the use and occupation of the premises, and rendered judgment in favor of the plaintiff for $954 and costs.

We think the court erred in allowing the plaintiff $750 on account of the increase in value of the property. Section 3306 of the Civil Code provides: “The detriment caused by the breach of an agreement to convey an estate in real property is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto, in case of bad, faith, the difference between the- price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land.”