Jackson, Chief Justice.
An action for damages was brought by Askew against Irwin, on the allegation that the latter had, by written agreement, obligated himself to make title to the former to a tract of land upon his payment of a certain sum of money, and failed to comply with his contract, and so in[585]*585formed Askew that he could not and would not, because he could not give possession, another being in the occupancy of the land. The jury found for the plaintiff some hundred and fifty dollars, and a motion for a new trial being denied defendant, he excepted and assigned as error that denial.
1. The court below construed the written agreement to contemplate putting Askew in possession of the premises, as well as making him good titles thereto ; and this construction is excepted to. The court construed the writing properly. By it time was made of the essence of the contract, and it was stipulated that unless Askew paid punctually at the date of the maturity of each installment, then he should hold as the tenant of Irwin. How could he so hold, unless he was in the possession of the property ?
2. It is' insisted by plaintiff in error that, inasmuch as Askew had paid no money, if Irwin acted in good faith, and thought he could carry out the contract when he made it, then there could be no recovery, inasmuch as there was no damage. It appears in evidence that Askew was to go in and sow wheat in the fall, and had made arrangements to-cultivate the place, and that Irwin told him he could not comply with his contract. It seems another person was in possession, and Irwin could not or did not dispossess him. Askew applied to that adverse holder and could not get in, and then to Irwin, who answered that Askew must make other arrangments. We hold, with the view of the court below, that such-is not a case of damnum absque injuria; that Irwin, was bound to know, before he made this contract of sale, that he had it .in his power to make the title and put Askew in possession, and if, for any reason, he could not comply, nominal damages, at least, would be recoverable. Wrenn Whitehurst & Co. vs. Deveney, Hood & Co. this term, (p. 421, ante.)
3. In a cash like this, we think that the measure of damages is the difference between the .value of the land when agreed to be sold and its value when the breach occurred. [586]*586It is not the case of a breach of warranty where the measure is purchase money and interest, for none was paid ; and the true question to be settled is simply, what did Askew lose by the failure of Irwin to put him in possession of and make the title to the land he bargained to Askew, and that is what Askew lost by the failure. He lost precisely the difference between the price he had agreed to pay and what the value of the land was when Irwin, by refusing to comply, broke the contract. 9 Ga., 133; 49 Id., 9-11; 2 Sutherland on Damages, 212, et seq.; 78 Ill., 222 ; 6 Wheaton, 106; 113 Mass., 538 ; 65 Maine, 87; 1 Sedgwick Dam., 412, 430; Code, §2949.
4. When the contract was in fact annulled by Irwin saying to Askew that he could not make the title and put him into possession, tender of purchase money was unnecessary. 2 Benj. on Sales, 859; 2 Add., pp. 51, 55 ; 13 Eng. Com. Law R., 154; 55 Id., 371; 15 Penn. St., 128.
5. The evidence is sufficient to support the verdict. The presiding judge approved it, and it must stand.
Judgment affirmed.
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