Pa. St. 211, 54 Atl. 774-it was held that an action may be maintained for the breach of a parol contract for the sale of land, but that the damages in such an action are limited to the recovery of the purchase money paid, or the value of the consideration given and the expenses incurred, but would not include the loss of the bargain. For a judicial history of the rules which have obtained with respect to the recovery of damages in such cases in that state, see Bell v. Andrews, 4 Dall. 152, 1 L. ed. 779; Dumars v. Miller, 34 Pa. St. 319; Hertzog v. Hertzog's Admr., 34 Pa. St. 418; McNair v. Compton, 35 Pa. St. 23; Ewing v. Thompson, 66 Pa. St. 382; Meason v. Kaine, 67 Pa. St. 126; Harris v. Harris, 70 Pa. St. 170; Thompson v. Sheplar, 72 Pa. St. 160; Tyson v. Eyrick, 141 Pa. St. 296, 23 Am. St. Rep. 287, 21 Atl. 635; Rineer v. Collins, 156 Pa. St. 342, 27 Atl. 28.

And in Welch v. Lawson, 32 Miss. 170, 66 Am. Dec. 606, it was held that the vendee under a parol agreement could recover for his trouble, loss of time, etc., incurred upon the faith that the contract would be completed but could not recover for the loss of his bargain. In this connection see, also, Cain v. Kelly, 57 Miss. 830. In Johnson v. Hamilton, 36 Tex. 270, the contract was in parol, but that fact does not seem to have been considered important. While in Lawrence v. Chase, 54 Me. 196, the court merely observed that if the defendant desired to avail himself of the fact of the contract being in parol, he should have done so by a proper plea.

1. Social Standing of the Parties.-In Rowland v. Dowe, 2 Murph. (N. C.) 347, it was sought to affect the measure of damages recoverable by a consideration of the social standing of the parties, but the court said that their social standing had nothing to do with the measure of such damages.

g. Fact that Land is Ultimately Conveyed.-Where vendor ultimately conveys the land, the difference between the value when vendor should have conveyed and when actually conveyed, together with the rental during the intermission, has been held to be the measure of damages: Violet v. Rose, 39 Neb. 660, 58 N. W. 216. And see, also, Moreland v. Metz, 24 W. Va. 119, 49 Am. Rep.-246, to the same effect.

VIII. Matters More Particularly Affecting the Amount of Damages Recoverable.

a. Fact of Consideration Being Other Than Money.-The measure of damages for the breach of a contract to convey land in consideration of the performance of an act of uncertain value by the vendee is not the value of the land, but the injury suffered by the vendee where before performance on his part the vendor gives him bona fide notice that he cannot convey for want of title, but the value of the land is the measure where the vendee has performed

such contract on his part: Rohr v. Kindt, 3 Watts & S. 563, 39 Am. Dec. 53.

b. No Part of the Purchase Price having been Paid.-Where the purchase money has not been paid, the measure is the difference between the contract price and the value of the property at the date of the breach: Hartzell v. Crumb, 90 Mo. 629, 3 S. W. 59.

c. Only Part of Purchase Price having been Paid-Where part of the purchase price has been paid it does not seem to be disputed that the measure of damages is the value of the land at the time of the breach, where the rule obtains which allows damages based on that value, less so much of the price which remains unpaid: Bangs v. Paullin, 37 Ill. App. 465; Doherty v. Dolan, 65 Me. 87, 20 Am. Rep. 677; Pringle v. Spaulding, 53 Barb. 17; Johnson v. McMullen, 3 Wyo. 237, 21 Pac. 701, 4 L. R. A. 670.

d. Interest on Purchase Price Paid.-It seems that at common law, interest was not allowed: Sanderson v. Read, 75 Ill. App. 190. Interest is not allowable in suits for breach of contract to convey, unless there is an established market value for the property or means by which it can be ascertained what amount the vendee is entitled to recover: Sloan v. Baird, 162 N. Y. 327, 56 N. E. 752. In Kicks v. State Bank, 12 N. Dak. 576, 98 N. W. 408, it was held that the measure of damages for breach of a contract to convey land is the money paid on the contract with interest, if the vendor retains possession and without interest if the vendee has possession, though some of the cases allow the benefit of such possession to be counterclaimed as against the money paid. The court cited the following cases as sustaining the rule announced: Harding v. Larkin, 41 Ill. 413; Hutchins v. Roundtree, 77 Mo. 500; Flint v. Steadman, 36 Vt. 210; Conrad v. Trustees, 64 Wis. 258, 25 N. W. 24; Willams v. Rogers, 2 Dana, 375; Baxter v. Ryerss, 13 Barb. 267; Fernander v. Dunn, 19 Ga. 497, 65 Am. Dec. 607; Click v. Green, 77 Va. 827; Spring v. Chase, 22 Me. 505, 39 Am. Dec. 505.

In Worral v. Minn, 53 N. Y. 185, it was held where the vendee has paid the purchase price and the rental value of the property is less than the interest on the purchase money, the vendee is entitled to interest on the purchase money when kept out of the possession. As tending to support the award of interest, see Pinkston v. Hill, 9 Ala. 22; Hamaker v. Coons, 117 Ala. 603, 23 South. 655; Sanderson v. Read, 75 Ill. App. 190; Lancoure v. Dupre, 53 Minn. 301, 55 N. W. 129; Nolde v. Gray (Neb.), 102 N. W. 759; Brinckerhoff v. Phelps, 24 Barb. 100; Cock v. Taylor, 2 Overt. 49, 5 Am. Dec. 650; Combs v. Scott, 76 Wis. 662, 45 N. W. 532. But see, also, Krepp v. St. Louis etc. Co., 99 Mo. App. 94, 72 S. W. 479.

e. Placing of Improvements by Vendee.-The right to recover for improvements placed upon property under various circumstances has been exhaustively considered in several monographic notes in

this series: See the notes to Pitt v. Moore, 6 Am St. Rep. 495; Shepherd v. Jernigan, 14 Am. St. Rep. 53; Ward v. Ward, 52 Am. St. Rep. 935; Cleland v. Clark, 81 Am. St. Rep. 164. As particularly concerning the recovery of improvements in suits for the breach of contracts to convey, see Breja v. Pryne, 94 Iowa, 755, 64 N. W. 669; Cloud v. Whitlow, 6 La. Ann. 743; Lancoure v. Dupre, 53 Minn. 301, 55 N. W. 129; Fleckten v. Spicer, 63 Minn. 454, 65 N. W. 926; Cartin v. Hammond, 10 Mont. 1, 24 Pac. 627; Gerbert v. Trustees, 59 N. J. L. 160, 59 Am. St. Rep. 578, 35 Atl. 1121; Boyd v. Vanderkemp, 1 Barb. Ch. 273; Walton v. Meeks, 120 N. Y. 79, 23 N. E. 1115; Tyson v. Eyrick, 141 Pa. St. 296, 23 Am, St. Rep. 287, 21 Atl. 635; Cade v. Brown, 1 Wash. 401, 25 Pac. 457.

f. Fact of Land having been in Possession of Vendee.-The measure of damages, it was said in Muenchow v. Roberts, 77 Wis. 520, 46 N. W. 802, is the difference between the value of the land and the purchase price, but the value of the use of the land for the period during which payments were to be made cannot be added, for such value is an element included in making a correct estimate of the value of the land.

g. Land to be Conveyed Being a Matter of Selection.-Where a covenantor agrees to convey by a day certain one of several lots to be selected by the covenantee, the measure of damages where the covenantor fails to convey, where no demand is made on the covenantor to convey any particular lot, is the value of any unsold lot and interest from the commencement of the action: Bell v. Quarles, 5 Yerg. 463, 26 Am. Dec. 280.

h. Decrease in Value of Land to be Conveyed.-In Carver v. Taylor, 35 Neb. 429, 53 N. W. 386, it was said where the land is of less value than the contract price, the vendee is entitled to recover only nominal damages for the breach. And in Doherty v. Dolan, 65 Me. 87, 20 Am. Rep. 677, it was held where there has been a part payment, and the land is worth less than the contract price at the time the conveyance should have been made, the vendee may recover what the land was then worth, less the amount of the purchase price that remained unpaid.

IX. Damages Accruing Subsequent to the Breach.

Chief Justice Marshall in Letcher v. Woodson, 1 Brock. 212, observed: "I can find no principle which, in a case of plain mistake with respect to title, will permit the damages to grow after the contract has been broken. I am therefore of the opinion that in this case the value of the land at the time of trial is not the standard of damages." So, also, in Warner v. Bacon, 8 Gray, 397, 69 Am. Dec. 253, damages sustained after action brought for breach of the contract to convey by reason of withholding the land from the plaintiff was held not recoverable in that action, though it was intimated it Am. St. Rep., Vol. 106-62

might be in a subsequent action. And in Houston etc. Co. v. Wright (Tex. Civ. App.), 46 S. W. 884, it was held where the vendee sells after the time when the conveyance should have been made, but before the conveyance is actually made, the measure of damages is the difference in the market value of the land when the conveyance should have been delivered, by the original vendor, and that at the date vendee sold the land, unless vendee sold the land for more than the market value, in which event the measure of damages would be the difference in the market value at the date when the conveyance should have been delivered, and the price at which he sold the land unless the market value went higher after he should have received the deed, and before he sold, in which event he was entitled to have advantage of such rise, since the refusal to convey was a continuing wrong.

CLITHERO v. FENNER.

[122 Wis. 356, 99 N. W. 1027.]

ADVERSE POSSESSION, What Sufficient. If One Incloses Land on Three Sides, and the fourth is bounded by a natural watercourse sufficient to keep his stock within his inclosure, and the stock of others out of it, and he pastures it and cuts wood over it, and uses it generally as do owners of similar land, this is sufficient to support a finding of adverse possession on his part. (pp. 980, 981.)

ADVERSE POSSESSION, Tests of.-In determining whether acts constitute an adverse possession of real property, resort must be had to the usual and ordinary conduct of owners of such land. If the possession comports with the ordinary management of such lands by their owners, it furnishes sufficient evidence of an adverse possession. (p. 981.)

ADVERSE POSSESSION, Rights Under, When Pass to Land not Described in a Deed.-If the owner of a farm holds adverse possession of a tract adjacent thereto, and sells such farm and conveys it to another, the description containing no reference to the lands so adversely held, his rights pass to his grantee, and the united possession of the grantor and the grantee may create title by prescription. (pp. 981, 982,)

ADVERSE POSSESSION.-The Continuity of Adverse Possession is not Broken by the failure of the claimant to occupy the property personally, if others are in possession for him. (p. 982.)

ADVERSE POSSESSION.-The Fact that One Who Holds Lands Adversely Negotiates with the Owner does not establish a relinquishment of the adverse claim, nor prevent the holder from asserting title by prescription. (p. 982.)

NEW TRIAL.-Newly Discovered Evidence does not Require the Granting of a New Trial where it is cumulative and impeaching testimony bearing upon the issues actually litigated, nor where the moving party did not use due diligence to secure such evidence at the trial. (p. 983.)

NEW TRIAL, Discretion of the Court.-The granting or refusing of a new trial upon newly discovered or impeaching evidence rests largely in the discretion of the trial court. (p. 983.)

Action to quiet title. The trial court found as follows: "Respondent's father entered lot 4 of section 4, town of Fort Winnebago, Columbia county, in 1850. Upon complying with the requirements under the law as to payment for the land, he was entitled to a patent from the government in December, 1869. The strip of land in controversy consists of a part of lot 3 in the same section, adjoining lot 4 on the east. This strip is separated from the other part of lot 3 by a stream called 'Neenah creek.' The strip lying between

this stream and the boundary line between lots 3 and 4 is divided by a highway crossing its northern part. The bank of the creek is from ten to twelve feet high, and the channel is filled with water to the depth of a number of feet. No fence has ever been built on the line dividing the lots, as originally surveyed. The strip in dispute consists of a meadow, a swale,