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by the Appellant is stated in Kent's Com. (a). "The grantor
has no concern with the subsequent rise or fall of the land
by accidental circumstances, or with the beneficial im-
provements made by the purchaser, who cannot recover
any damages, either for the improvements or for the
increased value
The measure of damages on a
total failure of title, even on the covenant of warranty, is
the value of the land at the execution of the deed; and the
evidence of that value is the consideration money, with
interest and costs. . . . The ultimate extent of the ven-
dor's responsibility, under all or any of the usual covenants
in his deed, is the purchase-money, with interest; and this
I presume to be the prevalent rule throughout the United
States." No claim for "improvements" is made here; and
the only improvement that has taken place is in the increase
in the value of the land. [Pollock, C. B. Why should not
the Plaintiff have the benefit of that?] Because it was not in
the contemplation of the parties to the original agreement.
Where improvements arise from causes of an entirely
collateral nature, and not from the acts of the purchaser (such
acts being the fair consequence of the contract), Kent's
doctrine is true, that the money actually paid with interest
is the measure of damages: Mayne on Damages (b). In
contracts for the sale of real estate there is no warranty of
title, but only an implied condition that the vendor has a
good title; on that proving defective, the purchaser cannot
recover for the fancied loss of his bargain: Flureau v.
Thornhill (c). [Martin, B., referred to the judgment of
Parke, B., in Robinson v. Harman (d).] The rule of the
common law with reference to mercantile contracts, that on
a breach the party sustaining the loss shall be put in the
same situation, so far as money can do it, as if the contract
had been performed, is not applicable to cases like the
present. [Channell, B. It should not be forgotten that

(a) Vol. iv., lec. 67, ed. xi., pp. 561-64.

In

this is a case of the breach of an express contract. Lord
St. Leonards, in his work on Vendors and Purchasers,
p. 336, 14th ed., says "Where the purchaser has paid
any part of the purchase-money, and the seller does not
complete his engagement, so that the contract is totally
unexecuted, the purchaser may affirm the agreement by
bringing an action for the nonperformance of it, or he may
disaffirm it and bring an action for money had and received
to his use.
In this latter action the Plaintiff cannot re-
cover more than the money paid, although the estate has
risen in value; while it should seem that if the estate
has sustained a diminution in value, he can only recover
the damages he sustained by the estate not having been
conveyed; that being the only money retained by the
Defendant against conscience. But where, for example,
the purchaser has had possession of the property, so that
the parties cannot be placed in statu quo, the count for
money had and received cannot be maintained."]
Sedgwick on Damages, p. 159, 2nd ed., the author cites
Staats v. Ten Eyck's Executors (a), and quotes the opinion
of Kent, C. J., that the rule at common law upon a writ of
warrantia charte was that the demandant recovered in
compensation only for the land at the time of the war-
ranty made, and that he did not find that the law had
been altered since the introduction of personal covenants.
And in the same case, Livingston, J. said, "To find a proper
rule of damages in a case like this is a work of some diffi-
culty; no one will be entirely free from objection, or not
at times work injustice. To refund the consideration, even
with interest, may be a very inadequate compensation when
the property is greatly enhanced in value, and when the
same money might have been laid out to equal advantage
elsewhere. Yet, to make this increased value the criterion
where there has been no fraud, may also be attended with
injustice, if not ruin." And the author, at p. 157, refers
to Pomery v. Partington (b). There is no case precisely
(a) 3 Caines, 111.
(b) 3 T. R. 665, 678, n.

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in point with the present. In Williams v. Burrell (a), the lessee had entered on the demised premises under the lease, and was evicted while in possession.

Mellish (Archibald with him) for the Plaintiff.—A covenant for a good title would be broken the moment it appeared there was no title; but a covenant in a lease that the lessee shall have quiet enjoyment is not broken until the third party intervenes, and the state of things at the time of the interruption must surely be the measure of damages. If that is the true principle on which the damages should be estimated, there can be no difficulty as to the details; and the learned Judge, at the trial, was right in ruling that the Plaintiff was entitled to recover the difference in value between the old and the new leases.

MARTIN, B. I am clearly of opinion that the judgment of the Court of Common Pleas ought to be affirmed; and the Lord Chief Baron, who has left the Court, desired me to say that he concurs in that opinion. The true doctrine is laid down in Robinson v. Harman (b), by Parke, B. "The rule of the common law is, that where a party sustains a loss by reason of a breach of contract, he is, so far as money can do it, to be placed in the same situation, with respect to damages, as if the contract had been performed." Here a person enters into an engagement by which certain things are to be performed, and there is a breach of that engagement-and why should not the ordinary rule prevail. It is said that the case of Flureau v. Thornhill (c), qualified the general rule; and that case was upheld in Sikes v. Wild (d). But in Hopkins v. Grazebrook (e), Abbott, C. J. said, "If it is advanced as a general proposition, that where a vendor cannot make a good title the purchaser shall recover nothing more than nominal damages, I am by no means prepared to assent to it. If (a) 1 Com. B. 402. (b) 1 Er. 850, 855. (c) 2 W. Bl. 1078. (e) 6 B. & C. 31, 33.

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(d) 4 B. & S. 421.

it were necessary to decide that point, I should desire to have time for consideration;" showing that the Court did not assent to it. It being an exception to the rule of the common law, why should we extend it? Primâ facie the claimant would be entitled to be put in the same position as if the contract had been performed: but it has been properly considered that if a benefit arises in regard to the property that should be considered also.

CHANNELL, B. I am of the same opinion. The action is brought against the Defendant, as executor of the deceased, for breach of a covenant for quiet enjoyment, and that is what we are entitled to treat as the subject of Plaintiff's claim. It may be remarked, in passing, that there is a difference between a breach of covenant for title and one for quiet enjoyment, because in the former case the breach may be said to occur at the time of the contract, the other at the time of eviction. The question before us, however, is, upon what principle the damages ought to be assessed? And I am of opinion that the learned Judge, at the trial, stated the true principle when he told the jury that "the Plaintiff under the circumstances was entitled to be indemnified for what he had lost under the breach of covenant, and to recover the difference in value between the old and new leases." The Plaintiff was not, therefore, limited, as contended by Mr. Garth, to the recovery of the 4007. paid as premium for the new lease, but to more than that. The general rule of law being, that when a person enters into a contract and fails to perform it, he is liable for the breach, and must make compensation in favour of the person injured to the extent of the injury done. Certain cases have been cited showing a qualification of the general rule, and a distinction has been drawn between the present contract and mercantile contracts; and reference has been made to the question of what damages can be recovered in an action for money had and received? It is, however, un

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necessary to enter into these questions, for the present case is distinguishable.

The new lease was to take effect on the termination of the old one, and no doubt it was a mere interesse termini; but the contract was actually executed by the testator as far as he could, and it was no longer in fieri. The Plaintiff was, therefore, entitled to the damages resulting from the breach of that contract, and not merely to the money which he had paid. With reference to the mode of calculating the amount of damages, I think that all that was done at the trial was to work out the principle laid down by the Lord Chief Justice, and that principle being correct, I do not see that the Defendant can complain of the amount, which in fact has already been reduced in the Court below.

BLACKBURN, J. I am also of opinion that the judgment of the Court of Common Pleas should be affirmed. The general rule where a contract is broken is, that so far as damages can do so, the party sustaining the loss shall be put in the same situation as if the contract had been fulfilled; and when we see that the contract would have given the enjoyment of a particular thing, the measure of damages would be the value of that of which he has been deprived. That I take to be clearly laid down in Robinson v. Harman (a). To this rule, however, there is an exception; the origin of which was, no doubt, that from the peculiar character of real estate in England, it is always difficult to give a perfectly good title to that kind of property; and all that can be done is to give such a title as approximates to a good one. Parties may, however, agree that on the conveyance of an estate the seller shall not be liable to all the consequences that would ensue from a failure of title, but that he shall be bound only to repay the

(a) 1 Ex. 850, 855.