after notice of rescission, but his damages, in such cases, are to be measured, as of the time of the breach of the contract by the vendee. Vanstory Clothing Co. v. Stadiem (1908) 149 N. C. 6, 62 S. E. 778; Heiser v. Mears (1897) 120 N. C. 443, 27 S. E. 117. The theory upon which this conclusion is reached is not that the buyer, or the party in default, has a right to pay damages as an alternative performance of his contractual obligation, but rather upon the theory that it is the duty of the seller to do nothing, after notice of rescission, to increase his damages." Novelty Advertising Co. v. Farmers Mut. Tobacco Warehouse Co. (1923) 186 N. C. 197, 119 S. E. 196.

In another case in that state it appeared that the defendants' retail merchants in Asheville, North Carolina, on May 21, 1894, contracted with the plaintiff, a wholesale manufacturer of Baltimore, Maryland, for a lot of shoes. to be soon thereafter manufactured and delivered. On May 26, 1894, the plaintiff received written notice from the defendants not to make the shoes, and that the defendants could not take them. At that time the plaintiff "had cut the leather for the uppers preparatory to making the shoes, and partly fitted them to the lasts." The plaintiff refused to accept the countermand, finished the shoes, and tendered them to the defendants, who refused to receive and pay for them. The plaintiff then sued for the entire contract price. The court charged the jury that the measure of the plaintiff's damages was the difference between the contract price and the market value of the goods at the time they were to be delivered. The court on appeal said: "When the contract is executory and the buyer countermands his order, that is notice to the other party that he elects to rescind his contract and submit to the legal measure of damages, which must result from every breach of contract. We think his Honor gave the jury proper instruction, except that he should have said, 'at the time of the breach,' instead of 'at the time the goods were to be delivered.' That error does not hurt the defendant, as he does not appeal." Heiser v. Mears (N. C.) supra.

And in Texas in Tufts v. Lawrence (1890) 77 Tex. 526, 14 S. W. 165, it appeared that the defendants had on May 9, 1885, given an order for a sodawater apparatus to be manufactured, and had, on June 2, telegraphed the plaintiff not to send it. The latter, however, completed it and shipped it on June 4. As to the question of damages the court said: "The telegram sent by appellees on the 2d day of June and received by appellant before the goods were ready for delivery was a repudiation of the contract. After it was received, appellant had no right to proceed with the performance or to recover the contract price as if the property in the goods had passed to the appellees. His remedy was to sue for damages for breach of contract, and he was entitled to recover the difference between the contract price and the value of the goods in the condition they were in when he received the notice at the place of their manufacture."

In the case of a contract for goods to be manufactured, it has been held that where the goods have been made and are ready for delivery at the time of the breach, the measure of damages is to be determined on the basis of the difference between the market value at that time and the contract price, if the latter be greater than the former. Kingman & Co. v. Western Mfg. Co. (1839) 34 C. C. A. 489, 92 Fed. 486; Mangold Stave & Cooperage Co. v. Lucas E. Moore Stave Co. (1912) 116 C. C. A. 542, 197 Fed. 20.

In a case in the circuit court of appeals which involved a contract for the manufacture of bags, it appeared that the plaintiff bought cotton specifically to make up the cloth in question, that this cotton was allocated to these contracts, and that it was manufactured into cloth long before the final repudiation. The court held that the measure of damages would be the difference between the contract price of the bags and the market value of the cloth, or of cloth of plaintiff's grade and quality, at the date of repudiation, plus the cost of the conversion into bags. Petoskey Portland Cement Co. v. E. V. Benjamin Co. (1924) 296 Fed. 9. H. C. J.

V.

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Deeds, § 118 conveyance for support control by court.

2. In such case the court may direct that the land, or so much thereof as may be required for the grantor's support during his life, be leased or sold, Headnotes by MEREDITH, J.

and for that purpose may apply either the income or the proceeds of sale, or such part thereof as may be necessary, to the maintenance of the grantor, in a manner suitable to his station in life.

[See 4 R. C. L. 511.]

Messrs. Stafford & Rhodes, for appellants:

Plaintiff was entitled to no relief, as the deed was made to hinder, delay, and defraud creditors.

Burt v. Timmons, 29 W. Va. 441, 6 Am. St. Rep. 664, 2 S. E. 780; Knight v. Capito, 23 W. Va. 644; Bump, Fraud. Conv. 3d ed. pp. 57-59; Livey v. Winton, 30 W. Va. 555, 4 S. E. 451; Kanawha Valley Bank v. Wilson, 25 W. Va. 243; Hunter v. Hunter, 10 W. Va. 321; Horn v. Star Foundry Co. 23 W. Va. 522; McClintock v. Loisseau, 31 W. Va. 865, 2 L.R.A. 816, 8 S. E. 612; Stout v. Phillippi Mfg. & M. Co. 41 W. Va. 340, 56 Am. St. Rep. 843, 23 S. E. 571; Corrothers v. Harris, 23 W. Va. 177; Edgell V. Smith, 50 W. Va. 350, 40 S. E. 402; Hanna v. Charleston Nat. Bank, 55 W. Va. 185, 46 S. E. 920; J. G. Cherry Co. v. Helm, 2 A.L.R. 1439, note; 19 R. C. L. 243, § 4; 8 R. C. L. 1026, § 82; Keister V. Cubine, 101 Va. 768, 45 S. E. 285; Pownal v. Taylor, 10 Leigh, 172, 34 Am. Dec. 725; Bates v. Swiger, 40 W. Va. 420, 21 S. E. 874.

The death of the grantees was unavoidable, so far as they were concerned, and was an act of Providence which prevented further carrying out of the contract as appears from the deed of conveyance, and excused them from doing anything further under the contract.

Sanders v. Coleman, 97 Va. 690, 47 L.R.A. 581, 34 S. E. 622; 4 Enc. U. S. Sup. Ct. Rep. 587; Board of Education v. Townsend, 63 Ohio St. 524, 52 L.R.A. 868, 59 N. E. 223; Wilson v. Riffle, 87 W. Va. 160, 104 S. E. 285.

Mr. James Damron for appellee. Meredith, J., delivered the opinion of the court:

This is an appeal from a decree of the circuit court of Mingo county, setting aside a deed made by Henry Marcum to his two sons, James and John B. Marcum, dated June 27, 1919. The deed recites a consideration of $3,000 paid, "and the further consideration that the parties of the

second part is to cear and montain the the said Henry Marcum during his natial life," and purports to convey with general warranty two tracts aggregating 445 acres. It is shown by the evidence of the scrivener that the cash consideration was not paid, nor was it intended to be paid. Suit was brought to set aside. the deed because of the failure of the grantees to furnish the required support. The court granted the prayer of the bill.

Defendants urge two grounds of error: First, that the deed was made to hinder, delay, and defraud the grantor's creditors; hence, he is entitled to no relief. Second, that, assuming the grantor is entitled to support from the property, he cannot have the deed set aside, because there was no default of the original grantees, they having partly performed their contract and died, leaving the property to their widows and infant children, who would have completed performance, had the plaintiff permitted them to do so; that, had the widows refused performance, it was the duty of the court to treat the land as a trust estate, and, through a receiver or other officer, rent or sell it, using a sufficient amount of the proceeds to support the grantor during his life, and distributing the remainder, upon his death, among the grantees' heirs and the two widows, according to their respective interests.

It appears that Henry Marcum was about seventy years of age. He was handicapped by the loss of an arm and an eye, was ignorant, and not of a very pleasant disposition. He and his wife, Verlina, owned together an undivided two tracts of land, aggregating about 415 acres, upon which they had lived for many years. He owned a store located on the land, which was conducted by his wife. They had had twelve children, three of whom were deceased. One or more had married and moved away from the neighborhood. James and John B., the grantees, were married and lived near by in separate homes, probably on this land.

Some of the children were infants and lived with their parents. In June, 1919, Verlina Marcum, wife of plaintiff, left home, taking the infant children, and went to Portsmouth, Ohio, where she has lived ever since. According to the testimony of the plaintiff, she stripped the store of about everything in it, and took part, if not quite all, of the household furniture. There being no one to care for plaintiff, he proposed to his two sons, James and John B., or they proposed to him (but who made the proposal is immaterial), that the father should convey to the two sons his land, in consideration of a lifetime support from them. Thereupon the deed was made. It will be observed that it covers the whole of the 445 acres, ascertained to be 415 acres, while the father had but a half interest therein. Immediately thereafter James, with his wife and children, moved into the home which had been occupied by the father, where they continued to reside until the son James was killed in June, 1920. Shortly thereafter the son John B., with his wife and children, undertook the care of the father, and continued to furnish him a home until the following December, a period of about six months, when the son John B. was killed.

There is no doubt but that the father and the two sons got along well together, and plaintiff was satisfied with his treatment, but after the death of the second son troubles arose. Plaintiff and the wife of John B. Marcum could not get along together. Each one states it was the other's fault, but the wife of James Marcum and the wife of John B. Marcum both say that they would have been willing to care for the father, had he treated them right. However, they both testify that, owing to his conduct, they could not remain in the same home and care for him.

It appears that James Marcum had built a store after he moved into the father's home, and conducted a store there up to the time of his

death; that he had a 40-acre tract of land of his own, and was employed by the Norfolk & Western Railway Company at $90 per month. John B. Marcum was also employed. The father, during the life of the two sons, worked upon the land and each helped the other. So there can be little controversy as to whether the sons, during life, carried out their portion of the contract, and there is no doubt that since the death of John B. Marcum the father has been compelled to support himself on the farm. It appears that, after the widow of John B. Marcum left, the plaintiff's daughter and one or two of his other children came back to the old home, where they have since been living.

The defendants contend that the deed was made to defraud the grantor's creditors. It is shown that at the time the deed was made plaintiff had scarcely any other property, certainly not more than $200 worth. At that time he owed debts aggregating from $500 to $750-debts that were contracted through the store, all of which, however, have, since the deed was executed, been paid by the grantor. But plaintiff was fearful that his wife, before she left him, had contracted debts to a considerable amount over and above the sums proved. He claimed that she had bought some furniture, had it charged to him, and had it shipped to a party at Williamson in the name of "Brown," where she obtained it and took it with her to Portsmouth. He was also afraid that she would contract debts for which he would be liable. There is evidence in the record to the effect that he made various statements to disinterested persons that his object in making the deed was to avoid paying these debts. But, as the circuit court has found for the plaintiff upon the is sue as to his fraudulent intent, we find it unnecessary to state whether such fraudulent intent has been proved, in view of our disposition of the case. He is an old man, having only a few years to live, at most, and under the peculiar circumstances of

this case we think that justice can be done to all parties. It appears that after his wife left him a divorce suit was instituted, either by him or her, and that the plaintiff was awarded a decree of divorce; also, that a partition suit was instituted, and the land was divided between the plaintiff and his wife, the plaintiff receiving approximately 200 acres, so that there is now in controversy that portion of the land which was laid off to the plaintiff in that partition suit.

As already stated, the grantees in the deed partially performed their part of the contract for a period of at least eighteen months. Each left surviving a widow and infant children. Upon their death the title to the land passed by descent to their heirs, subject to plaintiff's right to maintenance and to the right of dower of the widows. The conveyance is a grant of the land; it contains no condition subsequent. Upon failure of the grantees named therein to support the grantor, there is no provision made in the deed for a forfeiture of the estate. Of course, if the grantees had refused to support the grantor, he would have had a right to rescind. Lowman v. Crawford, 99 Va. 688, 40 S. E. 17; White v. Bailey, 65 W. Va. 573, 23 L.R.A. (N.S.) 232, 64 S. E. 1019. At the death of the grantees, however, all that remains is the grantor's right to charge the land for a lifetime support. Under the terms of the deed, the widows and grantees' children are not required to support the grantor. The children and the widows are probably not in a position to support the grantor unless they are allowed to live upon the land; they have not sufficient property, other than the land itself, out of which to furnish him support. The original grantees never were in default. The circumstances here are somewhat unusual. The deed makes no provision for the event of the grantees' death before the complete performance of the contract.

Plaintiff is in a court of equity.

-death of grantee.

toration of the property. We think that a court of equity should find some means of taking charge of this property and administering the estate as a trust for the benefit of the grantor during his life, the residue of the property to be distributed or divided among the children of the two sons and their widows, as their interests may appear at the time of the grantor's death. The grantor has a first charge upon the land; his right to support is above all other claims. The record shows that, if he lives upon the land, he can be supported at a cost of from $150 to $250 per year. As time goes on it may cost more, but he is entitled to a reasonable support, suitable to his circumstances and condition in life. Whether the land will rent for sufficient or not to furnish this support does not appear. It is shown that the land, valuable chiefly for its coal and timber and prospective oil and gas rights, is worth at least $20,000. We are of opinion that it is the duty of the court to ascertain the rental value of the land, and, if it will rent

-conveyance

court.

for sufficient to provide the grantor's support and pay the taxes thereon, the land ought to be leased for that purpose; that the court should also ascertain what would be a reasonable sum required for his support annually, and, if the land cannot be leased for a sum sufficient to support for supporthim, then the court control by should sell it, or such part thereof as it may deem reasonable for the purpose, and direct that a sufficient sum of the income, or of the corpus of the estate, if necessary, be used to provide his support and maintenance until his death-the proceeds to be preserved and protected under the decree of the court, so that, if there be anything left at the time of his death, it may be divided among those entitled thereto. If the plaintiff desires such relief as herein indicated, it will be necessary for him to amend his bill. This case is, in

many respects, similar to the case of Keister v. Cubine, 101 Va. 768, 45 S. E. 285. See also Abbott v. Sanders, 80 Vt. 179, 66 Atl. 1032, 13 L.R.A. (N.S.) 725, 130 Am. St. Rep. 974, 12 Ann. Cas. 898, and notes thereto.

For the foregoing reasons, the decree will be reversed, and the cause remanded for further proceedings to be had therein in accordance with the principles herein announced.