Opinion,
Mr. Justice Clabk :
This action was brought to recover the balance of purchase money upon a parol contract for the sale of a lot of ground fifty feet in front on Main street, in the borough of Phoenix-ville, the title to which is in the plaintiffs, as trustees for the Phcenix Iron Company. The contract was made with the defendant on the first day of September, 1888, through one Armory Coffin, the chief engineer of the company. The terms of the contract are stated in a memorandum contained in the .chief engineer’s note-book, as follows: “9 — 1, 88; Mr. James R. Eyrick agrees to take the 50-foot lot on Main street, south of Farmers and Mechanics’ Bank, for the price of, $6,000; viz., $2,000 cash, and the balance on mortgage, payable at will; $500 check, and $1,500 when papers are prepared.” The hand [309]*309money was paid at the time to the treasurer of the company, and Mr. Eyrick shortly afterwards entered into the possession.
The company actually did have a lot fifty feet in front, situate as described, and if the matter had so remained there would probably have been no difficulty. But when Coffin came, a month or more later at .Eyrick’s request, to measure and stake it off, he by mistake embraced a foot of ground on one side of the lot which did not belong to the company, and excluded a foot on the other side which did, and this gives rise to the whole controversy. The plaintiffs tendered a deed for the fifty feet they own and can convejq but the defendant demands a conveyance of the fifty feet of ground that was staked off to him, assigning as a reason that otherwise he cannot have the convenient use of one of the buildings which he has since erected. He alleges that, relying upon the location of the centre line of the lot by Coffin, he erected a three-story brick double dwelling, on each side of which he had designed a threo-foot passageway, and that, by reason of the mistake, one passageway is but two feet wide, and is inconvenient and unsuitable for the purpose intended.
The sale and the subsequent designation of the boundaries, although distinct in time, were, we think, component parts of the contract, and Eyrick had a right to insist upon a title in conformity therewith. The lot was staked off fifty feet in front, and ninety-five feet in depth. Mr. Eyrick says, in speaking of “this: “He (Coffin) measured back one hundred feet,, and he looked across, and he said that it ran beyond the bank line, and he said it was one hundred feet, more or less, and he gave me five feet less.” The lot was staked off to the same depth as the bank lot; it is not pretended that the lot was to extend farther back. The complaint is that the officers of the company told him the lot was fifty by one hundred feet, but, when it was discovered upon actual measurement that it was only ninety-five feet in depth, Eyrick made no objection; he accepted the lot according to the lines measured and staked off, and now insists that the conveyance shall be made accordingly. Nor was anything said, at or prior to this time, as to an alley in the rear. If the measurement and designation of the front line of the lot is binding upon the parties, the designation of the line in the rear is equally binding, and we can see no ground [310]*310for this feature of the controversy. It is true that a private map in the office of the Phoenix Iron Company shows an alley in the rear of this lot in question, but it does not appear that this or any other of the company’s lots, excepting only the bank lot, was sold with reference to this plot, and we cannot see that the defendant has any claim to the alley, or to more ground than was actually staked off to him. If he has a right to hold the company to the side lines of the lot as staked off, he is certainly bound by the lines in the front and rear, marked off and designated at the same time. He cannot play fast and loose in this respect; his claim must be consistent. If he wanted the use of an alley in the rear, he should have bargained for it, and there is no evidence whatever of any understanding or agreement to that effect. On the contrary, it appears that when a deed was tendered as a compromise, containing a grant of the alley, Eyrick treated it as of little consequence, for the reason, as he says, that “a blind alley is a nuisance.” It was not until much later, in their negotiations for settlement, that he asked them to extend the allejr in an L shape to Jackson street. The court erred in submitting to the jury any question of damages as to a deficiency in the depth of the lot. There was no evidence to justify such a submission. This part of the defendant’s claim is, in our opinion, wholly inconsistent with the only theory of the case upon which the defendant is entitled to anything by way of damages, and should have been excluded.
The case is therefore narrowed to a consideration of the proper measure according to which the defendant is entitled to recoup damages for failure of title as to the one foot on the south side of the lot. That the mistake was an honest one, that the plaintiffs acted throughout the transaction in good faith, is beyond question; there is no proof to any other effect. There is evidence, on the contrary, tending to show that they were willing and offered to do what they could to remedy the wrong which had been done to the defendant. Upon discovery .of their mistake, they were prompt in their efforts to make amends; they tried to purchase one foot off the Shaffer lot, covering the interference; failing in this, they offered to convey the fifty feet they had title for, and to embrace the alley in the rear. There is evidence, also, that immediately after the [311]*311discovery of the mistake, and when they failed to get one foot off the Shaffer lot, they offered to move the walls of the building then under construction one foot nearer to the line of the bank lot, at their own expense; but this is denied. All this testimony, with that of a more direct character, bears upon the question of good faith; and, whilst there is much proof to this effect, there is none to the contrary.
We have, then, the parol sale of a lot, measured and marked on the ground as containing fifty feet front, and a failure of title to the extent of one foot; the failure resulting from an honest mistake as to the true boundary. What is the true measure of damages in such a case?
The law of Pennsylvania on this subject is certainly well settled. Where the contract is executed by deed, with covenants of general warranty of title, the rule undoubtedly is that the measure of damages for failure of title, in the absence of fraud is limited to the purchase money and interest, or, in other words, to the price of the land at the date of the deed, whether the consideration consist of services, land, or money: Bender v. Fromberger, 4 Dall. *436; Brown v. Dickerson, 12 Pa. 372; McClure v. Gamble, 27 Pa. 288; McClowry v. Croghan, 1 Gr. 311; Lanigan v. Kille, 97 Pa. 120. The rule is founded, in part, probably, in the ancient law of warranty, which gave to the party evicted a judgment against his vendor for lands of equal value to those conveyed: 2 Kent Com., 477. Interest is added to the amount of the consideration, unless the land is improved and the purchaser has been in the possession. In such case, the claim for interest is extinguished, except for that part of the time for which the purchaser is liable to mesne profits: Cox v. Henry, 32 Pa. 18; Patterson v. Stewart, 6 W. & S. 527; Wacker v. Straub, 88 Pa. 32.
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Opinion,
Mr. Justice Clabk :
This action was brought to recover the balance of purchase money upon a parol contract for the sale of a lot of ground fifty feet in front on Main street, in the borough of Phoenix-ville, the title to which is in the plaintiffs, as trustees for the Phcenix Iron Company. The contract was made with the defendant on the first day of September, 1888, through one Armory Coffin, the chief engineer of the company. The terms of the contract are stated in a memorandum contained in the .chief engineer’s note-book, as follows: “9 — 1, 88; Mr. James R. Eyrick agrees to take the 50-foot lot on Main street, south of Farmers and Mechanics’ Bank, for the price of, $6,000; viz., $2,000 cash, and the balance on mortgage, payable at will; $500 check, and $1,500 when papers are prepared.” The hand [309]*309money was paid at the time to the treasurer of the company, and Mr. Eyrick shortly afterwards entered into the possession.
The company actually did have a lot fifty feet in front, situate as described, and if the matter had so remained there would probably have been no difficulty. But when Coffin came, a month or more later at .Eyrick’s request, to measure and stake it off, he by mistake embraced a foot of ground on one side of the lot which did not belong to the company, and excluded a foot on the other side which did, and this gives rise to the whole controversy. The plaintiffs tendered a deed for the fifty feet they own and can convejq but the defendant demands a conveyance of the fifty feet of ground that was staked off to him, assigning as a reason that otherwise he cannot have the convenient use of one of the buildings which he has since erected. He alleges that, relying upon the location of the centre line of the lot by Coffin, he erected a three-story brick double dwelling, on each side of which he had designed a threo-foot passageway, and that, by reason of the mistake, one passageway is but two feet wide, and is inconvenient and unsuitable for the purpose intended.
The sale and the subsequent designation of the boundaries, although distinct in time, were, we think, component parts of the contract, and Eyrick had a right to insist upon a title in conformity therewith. The lot was staked off fifty feet in front, and ninety-five feet in depth. Mr. Eyrick says, in speaking of “this: “He (Coffin) measured back one hundred feet,, and he looked across, and he said that it ran beyond the bank line, and he said it was one hundred feet, more or less, and he gave me five feet less.” The lot was staked off to the same depth as the bank lot; it is not pretended that the lot was to extend farther back. The complaint is that the officers of the company told him the lot was fifty by one hundred feet, but, when it was discovered upon actual measurement that it was only ninety-five feet in depth, Eyrick made no objection; he accepted the lot according to the lines measured and staked off, and now insists that the conveyance shall be made accordingly. Nor was anything said, at or prior to this time, as to an alley in the rear. If the measurement and designation of the front line of the lot is binding upon the parties, the designation of the line in the rear is equally binding, and we can see no ground [310]*310for this feature of the controversy. It is true that a private map in the office of the Phoenix Iron Company shows an alley in the rear of this lot in question, but it does not appear that this or any other of the company’s lots, excepting only the bank lot, was sold with reference to this plot, and we cannot see that the defendant has any claim to the alley, or to more ground than was actually staked off to him. If he has a right to hold the company to the side lines of the lot as staked off, he is certainly bound by the lines in the front and rear, marked off and designated at the same time. He cannot play fast and loose in this respect; his claim must be consistent. If he wanted the use of an alley in the rear, he should have bargained for it, and there is no evidence whatever of any understanding or agreement to that effect. On the contrary, it appears that when a deed was tendered as a compromise, containing a grant of the alley, Eyrick treated it as of little consequence, for the reason, as he says, that “a blind alley is a nuisance.” It was not until much later, in their negotiations for settlement, that he asked them to extend the allejr in an L shape to Jackson street. The court erred in submitting to the jury any question of damages as to a deficiency in the depth of the lot. There was no evidence to justify such a submission. This part of the defendant’s claim is, in our opinion, wholly inconsistent with the only theory of the case upon which the defendant is entitled to anything by way of damages, and should have been excluded.
The case is therefore narrowed to a consideration of the proper measure according to which the defendant is entitled to recoup damages for failure of title as to the one foot on the south side of the lot. That the mistake was an honest one, that the plaintiffs acted throughout the transaction in good faith, is beyond question; there is no proof to any other effect. There is evidence, on the contrary, tending to show that they were willing and offered to do what they could to remedy the wrong which had been done to the defendant. Upon discovery .of their mistake, they were prompt in their efforts to make amends; they tried to purchase one foot off the Shaffer lot, covering the interference; failing in this, they offered to convey the fifty feet they had title for, and to embrace the alley in the rear. There is evidence, also, that immediately after the [311]*311discovery of the mistake, and when they failed to get one foot off the Shaffer lot, they offered to move the walls of the building then under construction one foot nearer to the line of the bank lot, at their own expense; but this is denied. All this testimony, with that of a more direct character, bears upon the question of good faith; and, whilst there is much proof to this effect, there is none to the contrary.
We have, then, the parol sale of a lot, measured and marked on the ground as containing fifty feet front, and a failure of title to the extent of one foot; the failure resulting from an honest mistake as to the true boundary. What is the true measure of damages in such a case?
The law of Pennsylvania on this subject is certainly well settled. Where the contract is executed by deed, with covenants of general warranty of title, the rule undoubtedly is that the measure of damages for failure of title, in the absence of fraud is limited to the purchase money and interest, or, in other words, to the price of the land at the date of the deed, whether the consideration consist of services, land, or money: Bender v. Fromberger, 4 Dall. *436; Brown v. Dickerson, 12 Pa. 372; McClure v. Gamble, 27 Pa. 288; McClowry v. Croghan, 1 Gr. 311; Lanigan v. Kille, 97 Pa. 120. The rule is founded, in part, probably, in the ancient law of warranty, which gave to the party evicted a judgment against his vendor for lands of equal value to those conveyed: 2 Kent Com., 477. Interest is added to the amount of the consideration, unless the land is improved and the purchaser has been in the possession. In such case, the claim for interest is extinguished, except for that part of the time for which the purchaser is liable to mesne profits: Cox v. Henry, 32 Pa. 18; Patterson v. Stewart, 6 W. & S. 527; Wacker v. Straub, 88 Pa. 32.
In executory contracts, generally, the law recognizes and enforces the right of the purchaser to a title clear of defects and encumbrances, and this, except in particular cases, is not affected by the nature and extent of the covenants for title which the purchaser is to receive: Rawle on Cov., § 319. In McNair v. Compton, 35 Pa. 23, it was held that for breach, without fraud, of a real contract in writing, the measure of damages is to be determined by the consideration that passed between the parties: whether the contract be executed or execute[312]*312ry, this is the rule. If the consideration consist of services rendered, they are to be computed according to their value; if money received, it is to be returned with interest. So, also, in Hertzog v. Hertzog, 34 Pa. 418, an action for the breach of a parol contract for the conveyance of land in consideration of money paid and services rendered, it was held, overruling Jack v. McKee, 9 Pa. 235, and kindred cases, that the damages are to be measured by the amount of the consideration, and not by the value of the land. To the same effect are Dumars v. Miller, 34 Pa. 319; Graham v. Graham, 34 Pa. 475; Bowser v. Cessna, 62 Pa. 148; and Burk v. Serrill, 80 Pa. 413. The damages cannot be measured either according to the value of the contract, or the increased value of the land by reason of buildings erected or improvements made. Where the eviction complained of is partial, the recovery is proportioned to the value of the part of the premises to which the title has failed. It is competent to show that the part to which the title has failed was inferior or superior in quality to the other portion conveyed, and the true measure of damages is the value of that part taken in proportion to the price of the whole, the computation being upon the basis of the consideration money: Lee v. Dean, 3 Wh. 331; King v. Pyle, 8 S. & R. 166; Beaupland v. McKeen, 28 Pa. 124; Terry v. Drabenstadt, 68 Pa. 400. In Beaupland v. McKeen, supra, the rule for estimating damages for failure or defect of title to a part of the land conveyed, was held to be the relative value which the part taken away bears to the whole, and that is to be estimated with regard to the price fixed by the parties for the whole land; and whilst, in such cases, it is competent for either party to give evidence of peculiar advantages or disadvantages of the part lost with reference to the whole, at the time of the purchase, it was held that the additional expense of erecting improvements on an adjoining tract, incurred by reason of the defect in the title, in order to have the reasonable and proper enjoyment of the remaining portion of the land, was not allowable as damages.
The defendant’s contention is that he bought the ground which was staked off to him, and that he is entitled to a conveyance for the land he bought. The plaintiffs are not able to convey but forty-nine feet of the fifty they agreed to sell. Their inability arises out of no bad faith or fraud on their part; their [313]*313contract, for anything that appears, was made honestly, but through mistake as to the lines of their lot. The title to the specific subject of sale is to this extent defective. The defendant, upon discovery of this defect, made no offer to rescind; on the contrary, after he knew the plaintiffs were unable to comply with their contract, he continued to pay the purchase money and to proceed with his improvements. He is entitled, therefore, merely to an allowance for the proportionate value of the one foot of ground, to be computed upon the basis of the consideration of his contract. He cannot be allowed damages for the misplacement of his building; it was his duty, before expending his money upon valuable improvements, to ascertain and know his lines, and to locate his buildings accordingly. The Phoenix Iron Company, or its trustees, are responsible, upon the footing of their contract, for the title to the lot as it was when they sold it, to the extent of the purchase money; but the defendant, upon the principle of caveat emptor, took the risk of the title as to the improvements which he put upon it. If this were not so, the vendor in very many cases would be ruined by the purchaser’s improvements. If it seem hard that a purchaser, acting in good faith, should lose his improvements, it is equally hard that a vendor, also acting in good faith, should have to pay for them: Itawle on Cov., §§ 166,168.
We are of opinion that the first, second, fifth, and sixth assignments of error are sustained. This is the plaintiffs’ appeal, and we dispose of it as it is presented upon the assignments of error; it can therefore only be regarded as authority upon the specific questions decided.
The judgment is reversed, and a venire facias de novo awarded.