NOTE. The "right to convey," is not mentioned as a Common Law Covenant by the New York revisors, in Sec. 868, and yet this section fixes a rule of damages for a breach of it. (See Sec. 1119 of this Code.) SEC. 3307. Where there is a breach of a Code Covenant in respect to a part of or the whole of the property, or with respect to any particular requirement of the covenant, the covenantee may elect to rescind the contract, subject to the rules in Chap. II, Tit. V, Part II, Div. III, on Rescission, or he may have relief pursuant to the following sections. SEC. 3308. The detriment caused by the breach of the Special Code Covenant "against prior grants made by grantor," mentioned in Subd. 1, Sec. 1105, or of the General Code Covenant of "ownership," mentioned in Subd. 1, Sec. 1106, is determined by the five following sections [New section.] SEC 3309. When the title is void as to the whole or a Damages part, the detriment is 1. The price paid to the grantor; or, if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore, at the time of the grant, to the value of the whole property. 2. Interest thereon for the time during which the grantee derived no benefit from the property, not exceeding four years. N. Y. C. C., Sec. 1844-modified. SEC. 3310. When the title or possession is defective or disputed, but is capable of being perfected by judicial or other proceedings, or otherwise, or when there is a paramount title, the covenantee may elect to retain the property and perfect the title or possession, or purchase. the paramount title, and in such case the expenses properly incurred, not exceeding the original amount of purchase money paid, shall be the measure of damages. [New section.] where title is void. Damages where title is defective or disputed. Failure title not to SEC. 3311. If the covenantee, in good faith, under- to perfect takes to recover or defend the possession, or to obtain or preclude perfect the title, and fails to accomplish such undertaking, relief, when. obtaining On payment of costs be. fore action or judgment, covenantor may perfect title. Breach of nant against encumbrances. Damages where encumbrance is upon only property. he is not precluded from obtaining relief under the three preceding sections. [New section.] SEC 3312. The covenantor, at any time before action, or judgment in an action on the covenant, on payment of costs, if any, may make good the covenant by supplying a paramount title, or perfecting the title granted, or by performing any act which, if performed before the execution of the covenant, would have prevented the breach. [New section.] SEC. 3313. The detriment caused by the breach of a Common Law Covenant against encumbrances, in a grant of an estate in real property, is deemed to be the amount which has been actually expended by the covenantee in extinguishing either the principal or interest thereof. N. Y. C. C., Sec. 1845-divided. SEC. 3314. If the encumbrance mentioned in the preceding section is upon only a part of the property ina part of the cluded in the grant, the amount of damages for the prin cipal extinguished must be a proportion of the price paid to the grantor, equivalent to the relative value, at the time of the grant, of the property affected by the breach, as compared with the whole; or, in the latter case, interest on a like amount. Breach of Special Code Covenants against encumbrances. Breach of agreement to convey real prop erty. N. Y. C. C., Sec. 1845-divided. SEC. 3315. The detriment caused by the breach of the Special Code Covenant "against encumbrances imposed or suffered by the grantor," mentioned in Subd. 2, Sec. 1105, and of the General Code Covenant" against encumbrances," mentioned in Subd. 2, Sec. 1106, must be determined by the provisions of the two preceding sections SEC. 3316. 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. N. Y. C. C., Sec. 1846. Breach of agreement property. SEC. 3317. The detriment caused by the breach of an agreement to purchase an estate in real property, is to buy real deemed to be the excess, if any, of the amount which would have been due to the seller, under the contract, over the value of the property to him. By the present law of this State, one who has agreed to sell real property may recover the full contract price from the purchaser, without actually transferring the title to him, if he offered to do so before commencing the action (Richards vs. Edick. 17 Barb., 260; Franchot vs. Leach. 5 Cow., 506), unless he has actually sold the property to a third person (Wilson vs. Holden, 16 Abb. Pr., 133). This rule is, however, an unjust one, as was admitted in Richards vs. Edick (17 Barb., 260), where it was said that if the question was a new one, the rule stated in the text should be adopted, but that the contrary was too well settled in this State to be changed by judicial intervention. This section follows the rule which is settled in England (Laird vs. Pim., 7 M. & W., 474). N. Y. C. C., Sec. 1847. SEC. 3318. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has not been fully paid in advance, is deemed to be the excess, if any, of the value of the property to the buyer, over the amount which would have been due to the seller under the contract, if it had been fulfilled. N. Y. C. C., Sec. 1848. SEC. 3319. The detriment caused by the breach of a seller's agreement to deliver personal property, the price of which has been fully paid to him in advance, is deemed to be the same as in case of wrongful conversion. N. Y. C. C., Sec. 1849. SEC. 3320. The detriment caused by the breach of a buyer's agreement to accept and pay for personal property, the title to which is vested in him, is deemed to be the contract price. N. Y. C. C., Sec. 1850. SEC. 3321. The detriment caused by the breach of a buyer's agreement to accept and pay for personal prop. erty, the title to which is not vested in him, is deemed to be: Breach of warranty of title to personal property. Breach of warranty of quality of personal property. Breach of warranty of quality for special purpose. 1. If the property has been resold, pursuant to Sec. 3049, the excess, if any, of the amount due from the buyer, under the contract, over the net proceeds of the resale; or, 2. If the property has not been resold in the manner prescribed by Sec. 3049, the excess, if any, of the amount due from the buyer, under the contrast, over the value to the seller; together with the excess, if any, of the expenses properly incurred in carrying the property to market, over those which would have been incurred for the carriage thereof, if the buyer had accepted it. This provision seems to be only reasonable. Some things are marketable only in large cities, yet are manufactured or owned, in many cases, by persons living in the country. If such things should be bought by a resident of the country, the expense of forwarding them to him might be trifling, compared with the expense of transportation to the nearest market. Justice to the buyer requires that the market price should be allowed to him, but justice to the seller requires that he should be allowed the increased cost of sending the things to market. N. Y. C. C., Sec. 1851. SEC. 3322. The detriment caused by the breach of a warranty of the title of personal property sold, is deemed to be the value thereof to the buyer, when he is deprived of its possession, together with any costs which he has become liable to pay, in an action brought for the prop erty by the true owner. A different rule has been laid down in this State, conforming to the rule concerning real property (Armstrong vs. Percy, 5 Wend., 535); but this section states the law as it appears to be in England (see Simons vs. Patchett, 7 E. & B., 568), and as appears to be most in accordance with general principles. N. Y. C. C., Sec. 1852. SEC. 3323. The detriment caused by the breach of a warranty of the quality of personal property, is deemed to be the excess, if any, of the value which the property would have had, at the time to which the warranty referred, if it had been complied with, over its actual value at that time. N. Y. C. C., Sec. 1853. SEC. 3324. The detriment caused by the breach of a warranty of the fitness of an article of personal property for a particular purpose, is deemed to be that which is defined by the last section, together with a fair compen "sation for the loss incurred by an effort in good faith to use it for such purpose. N. Y. C. C., Sec. 1854. carrier's obligation to receive goods, etc. SEC. 3325. The detriment caused by the breach of a Breach of carrier's obligation to accept freight, messages or passengers, is deemed to be the difference between the amount which he had a right to charge for the carriage, and the amount which it would be necessary to pay for the same service, when it ought to be performed. N. Y. C. C., Sec. 1855. carrier's to deliver. SEC. 3326. The detriment caused by the breach of a Breach of carrier's obligation to deliver freight, where he has not obligation converted it to his own use, is deemed to be the value thereof, at the place and on the day at which it should have been delivered, deducting the freightage to which he would have been entitled, if he had completed the delivery. N. Y. C. C., Sec. 1856. SEC. 3327. The detriment caused by a carrier's delay Carrier's in the delivery of freight, is deemed to be the deprecia- delay. tion in the intrinsic value of the freight during the delay, and also the depreciation, if any, in the market value thereof, otherwise than by reason of a depreciation in its intrinsic value, at the place where it ought to have been delivered, and between the day at which it ought to have been delivered, and the day of its actual delivery. The rule here adopted is supported by the weight of authority, and, as the Commissioners believe, by the weight of reason. It is to be observed that the latter branch of the rule does not include the former. Goods may advance in the market, and yet be so injured by delay as to diminish their intrinsic value. The carrier ought not to benefit by his own fault. N. Y. C. C., Sec. 1857. warranty of SEC. 3328. The detriment caused by the breach of a Breach of warranty of an agent's authority, is deemed to be the authority. amount which could have been recovered and collected from his principal if the warranty had been complied with, and the reasonable expenses of legal proceedings taken, in good faith, to enforce the act of the agent against his principal. N. Y. C. C., Sec. 1858. |