23

value thereof for building lots, but they may consider the marketable value at the time of the breach and form their opinion "from taking a view of all the objects for which the land was desirable. "20 The value of premises may also be shown by proof of value of adjacent land, although of a different quality. So sales of neighboring land subsequent to the date of the breach of the contract of sale may be admissible, in the discretion of the court, to show value." Again, the price for which lands in the immediate vicinity, suitable for the purpose desired, could have been purchased, and the price for which the land was sold should be considered in determining the market value of land in an action for breach of contract to convey. But the rule has, however, been qualified in so far that the jury may, to a certain extent, consider the value of other lands and determine in view of all the circumstances surrounding such other property how far it tends to fix the value of the land in question, as where sales of such other land take place about the same time the value of the land under consideration is to be fixed and there is a general similarity in character, location and adaptability to use." If, however, the value of other property of the same kind has become fixed by the extent of its purchase and sale, it will establish the market value of the property in question.*

26

§ 1792. Evidence of value-What inadmissible.-Evidence of value at the time of the execution of the covenant is irrelevant. And the price paid by a vendee in a contract for the sale of land, who repurchases the same after it has been sold under a mortgage or judgment lien existing at the time of the contract, is no criterion of the damages he has sustained in an action against his vendor for eviction. Nor is proof of the sum at which the land was subsequently sold at private sale, without notice to the defaulting purchaser, sufficient to estab

20 Warren v. Wheeler, 21 Me. 484. 21 White v. Herman, 51 Ill. 243. 22 Barbour v. Nichols, 3 R. I. 187. 23 Marrimer v. Dennison, 91 Cal. 555; 27 Pac. 927.

24 Dady v. Condit, 104 Ill. App. 507. 25 Sloan v. Baird, 162 N. Y. 327; 30

27

Civ. Proc. R. 361; 56 N. E. 752, aff'g 12 App. Div. 481; 42 N. Y. Supp. 38. 26 Marshall v. Haney, 4 Md. 498; 59 Am. Dec. 92.

27 Martin v. Atkinson, 7 Ga. 228; 50 Am Dec. 403,

29

32

28

30

lish the value of the land. Nor is the price obtained at a sheriff's sale any criterion for the estimation of damages, to which a prior grantee was entitled against the judgment creditor, where such sale was improperly made against a prior grantor. And what another person paid for a half interest in the property is irrelevant upon the question of value of the other half interest three months prior thereto. Nor can the jury consider, as throwing light upon the value of the premises in question, the value of other lands which they have viewed.31 Nor should evidence of the value of the land for a particular purpose be considered. Nor can it be shown that the land has a particular value to the vendee, where the value of the land at the time of sale is the measure of damages for the vendor's breach of contract by a second sale. And in case of a breach of an agreement to sell, its prospective value by dividing it into lots and making improvements is inadmissible. Again, in estimating the value of the land in awarding damages for breach of an executory contract of sale, the value of the use of the land cannot be added. And evidence of a contract to sell to another may, in the court's discretion, be refused admission, where the loss of an opportunity to sell to a third person is alleged as special damages, in an action for damages for declaring forfeited an option to purchase mining property. So evidence is inadmissible that, soon after the purchaser had refused to take the land, other persons had offered to purchase it at the same price he was to pay. Nor, where the action is by the vendee for breach of a contract to convey, can evidence be given upon the question of value, showing that the vendor had allowed his brother to stay on the land without rent, and that it was altogether unproductive to him. Evidence is also in

35

37

28 Keitel v. Zimmerman, 19 Misc. Rep. 581; 43 N. Y. Supp. 676.

38

34

36

34 Boyd v. De Lancey, 91 Hun (N. Y.), 542; 70 N. Y. St. R. 830; 36 N.

29 Clowes v. Dickenson, 9 Cow. (N. Y. Supp. 245. Y.) 493.

35 Muenchow v. Roberts, 77 Wis.

3) Irvine v. Brady (Tex.), 19 S. W. 520; 46 N. W. 802. 1028.

81 Dady v. Condit, 188 Ill. 234; 58

N. E. 900, rev'g 87 Ill. App. 250.

82 Lewis v. Lee, 15 Ind. 449.

36 Hanson v. Smith (U. S. C. C. 9th C.), 36 C. C. A. 581; 94 Fed. 960. 87 Lewis v. Lee, 15 Ind. 499. 38 Jamison v. Keith, 19 Ky. L. Rep.

83 Mitchell v. Simons (Tex. Civ. 511; 41 S. W. 33.

App. 1899), 53 S. W. 76.

116

1841

admissible of the cost of erecting improvements on adjacent land, in consequence of the failure of title to a part of the land. 39

§ 1793. Evidence of value continued-"Booms."-Generally the prices at which city lots are being bought and sold is their market value and the fact that because of a "boom" the prices are fictitious is immaterial. If property derives its value from what is termed a "boom" in suburban lands and it is properly situated and of a proper amount to bear it and such demand is for the purpose of development, it is proper to show that, by reason thereof, the demand for property was unusual and extraordinary for suburban homes, and that such demand existed at the time of the breach of the contract as well as at the time of its execution, and also that it continued to exist for a reasonable length of time after the breach, for the value of the property in the market is its value for the most valuable purposes for which it is available. It may also be proven that many companies were formed, at or about the date of the breach, for the purpose of purchasing, developing, and exploiting suburban property. But it is incompetent to show, as original testimony, that by the expenditure of large sums of money in improvements, large amounts of money might be realized in speculation, although such evidence might be admissible on cross-examination as showing the reason for the existence of the demand. Again, if such project for improvements existed and if it created a real demand, that demand necessarily affects the market value." 39 Beaupland v. McKeen, 28 Pa. St. their money. This constitutes the 124. market value, and it is in no proper sense a fictitious value." Id., per Corn, J.

40 Johnson v. McMullin, 3 Wyo. 237; 21 Pac. 701; 4 L. R. A. 670. "It is urged that these were fictitious' values. All city values are in the same sense fictitious. It was not the value for agricultural purposes nor indeed for any other immediate use. But it is the sum for which the property was purchasable at the time, and it was not purchasable for less. It is the price at which purchasers having the best means of knowledge were willing to invest 95; Young v. Harrison, 17 Ga. 30,

41 Allison v. Cocke, 23 Ky. L. Rep. 1589; 65 S. W. 342. See Miss. & Rum River Boom Co. v. Patterson, 98 U. S. 403; 25 L. Ed. 206, holding that the adaptability of lands for the purpose of booms is a proper element of consideration of value of lands condemned. See also Furman St. Case, 17 Wend. (N. Y.) 639; Goodin v. Canal Co., 18 Ohio St. 169; 98 Am. Dec.

The above rule does not, however, apply where land is of a peculiar value to a single purchaser. And if the "boom" is not an existing one but is to be created, so that the value depends upon the contingencies and uncertainties of the future, and no real demand enhancing the value is occasioned by such "boom" the case is within the rule which precludes damages for loss of profits speculative and conjectural in character. So an instruction, which is to the effect that if the land had an increased market value, on the date provided for its conveyance, by reason of a boom in acreage property, the jury in estimating the measure of damages must take such increased value into consideration, whether such boom was permanent or temporary, and whether there would have been at that time any demand, or not, for the lots if the land had been subdivided, is misleading, for even if the land was increased in value by a "boom," that added value could in no way enter into the consideration of the jury, unless the increased value made it worth more, on the date for its conveyance, than the contract price."

42 Five Tracts of Land v. U. S., 41 C. C. A. 580; 10 Fed. 661. See Alloway v. Nashville, 88 Tenn. 510; 13 S. W. 123; 8 L. R. A. 123.

43 Carbondale Inv. Co. v. Burdick, 58 Kan. 517; 50 Pac. 442.

44 Dady v. Condit, 188 Ill. 234; 58 N. E. 900, rev'g 87 Ill. App. 250. 1843

1808. Partial breach-Proportion- 1828. Amount paid by purchaser to