vs. Newton, 4 Comst., p. 130; Utter vs. Chapman, 38 contract to liquidated 3302. The detriment caused by the breach of an Breach of obligation to pay money only, is deemed to be the pay amount due by the terms of the obligation, with inter- sum. est thereon. NOTE.-Sedgw. Dam., p. 236; Code La., 1929. Lord Mansfield remarked in the case of Robinson vs. Bland, 2 Burr., pp. 1077-1086, that "pecuniary damages upon a contract for the payment of money are, from the nature of the thing, a specific performance." Damages for the non-payment of money due consists of the money and interest for the period between refusal and judgment.-Parsons on Contracts, p. 155. In some cases the injured parties bear a part of their losses, in others the damages are increased by way of punishment to the wrongdoer.-Parsons on Contracts, vol. 3, p. 155, et seq. 3303. For the dishonor of foreign bills of exchange the damages are prescribed by Sections 3235, 3237, and 3238. NOTE. It was held in this State that payment of the protested second of a foreign bill of exchange before suit, with interest and cost of protest, releases the drawer from damages for the dishonor.-Page vs. Warner, 4 Cal., p. 364; see, also, Sec. 3275. 3304. The detriment caused by the breach of a covenant of "seizin," of "right to convey," of "warranty," or of "quiet enjoyment," in a grant of an estate in real property, is deemed to be: 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 five years; 3. Any expenses properly incurred by the covenantee in defending his possession. Dishonor of bills of foreign exchange. Detriment breach of caused by covenant of seizin, etc.; NOTE.-Price paid the grantor as damages.-Sedgw. Dam., p. 159; Staats vs. Ten Eyck, 3 Caines, p. 111. The grantee is not concluded by the consideration expressed in the deed.-Bingham vs. Weiderwax, 1 N. Y., p. 509. But he cannot recover for improvements.-Pitcher vs. Livingston, 4 Johns., p. 1; Bennet vs. Jenkins, 13 id., p. 50; Kinney vs. Watts, 14 Wend., p. 38. Compare Dimmick vs. Lockwood, 10 Wend., p. 142. In a partial breach damages are estimated to be the proportionate value of the part affected to the whole property.— Morris vs. Phelps, 5 Johns., p. 49. Interest only for time when no profit was derived.-Sedgw. Dam., p. 159. Interest is the legal countervail to the use of the land. The annual value cannot be recovered as such.Baxter vs. Ryerss, 13 Barb., p. 267. Not exceeding six (our statute and the text fix five) years.-Bennet vs. Jenkins, 13 Johns., p. 50; Caulkins vs. Harris, 9 id., p. 324; Baxter vs. Ryerss, 13 Barb., p. 267. Expenses defending possession.-Staats vs. Ten Eyck, 3 Caines, p. 111; Rickert vs. Snyder, 9 Wend., p. 416; House vs. House, 10 Paige, p. 158. Whether counsel fees and other like expenses in defending previous suits for the recovery of the property will or will not be allowed, and when.-See 3 Parsons on Contracts, pp. 164, 165, and the numerous cases there cited pro and con. If it is made to appear that the plaintiff has lost less than the value of the land, as by a purchase at a low price of an outstanding title, he will recover less.-Parsons on Contracts, Vol. 3, p. 224; Tanner vs. Livingston, 12 Wend., p. 83; Spring vs. Chase, 22 Me., p. 505; Leffingwell vs. Elliott, 8 Pick., p. 455; 10 id., p. 204; Loomis vs. Bedel, 11 N. H., pp. 74-87. If grantor has acquired a title which will inure to grantee by way of estoppel, the damages will be only nominal.-Baxter vs. Bradbury, 20 Me., p. 260. In Cornell vs. Jackson, 3 Cush., p. 506, it was held if grantee releases to a third person, he may still recover full damages. See, further, Parsons on Contracts, pp. 244, 245, et seq. The text is fully sustained by Rawle on Covenants for Title, p. 89, et seq.; also, id., pp. 326, 327; and by numerous cases there cited, from almost every State where the covenant of seizin is employed.See Rawle on Covenants for Title, p. 94, and Note 1. Subd. 1.-See Rawle on Covenants for Title, pp. 90100; also, partial breach, id. pp. 112, 114. Subd. 2.-Id., pp. 99-117. Subd. 3.-Id., pp. 121-126, and cases cited. caused by breach of covenant incumbrances, is 3305. The detriment caused by the breach of a Detriment covenant against incumbrances in a grant of an estate in real property is deemed to be the amount which against has been actually expended by the covenantee in what. extinguishing either the principal or interest thereof, not exceeding in the former case 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. NOTE.-Unless something has been actually paid, only nominal damages can be recovered.-Grant vs. Tallman, 20 N. Y., p. 191; Delavergne vs. Norris, 7 Johns., p. 358; Stanard vs. Eldridge, 16 id., p. 254; Prescott vs. Trueman, 4 Mass., p. 627; see Hall vs. Dean, 13 Johns., p. 105. But the covenantee is at liberty to pay off the incumbrance, and recover the amount paid, as stated in the text.-Id.; Braman vs. Bingham, 26 N. Y., p. 483. Measure-relative value of part affected and the whole.-Grant vs. Tallman, 20 N. Y., p. 191; Dimmick vs. Lockwood, 10 Wend., p. 142. Or, in the latter case, interest on like amounts.— Rickert vs. Snyder, 9 Wend., p. 423. Interest is usually the measure of damages, it being the standard which measures the use which the plaintiff might have made of his money.-See Parsons on Contracts, Vol. 3, pp. 214, 228. And may also recover the amount of money paid by him to remove the incumbrances after action commenced.-Id.; Henderson vs. Henderson, 13 Mo., p. 151; Leffingwell vs. Elliott, 10 Pick., p. 204; Brooks vs. Moody, 20 id., p. 474; Kelly vs. Low, 18 Me., p. 244; Pomeroy vs. Burnett, 8 Blackf, p. 143. Also, reasonable expenses, other than counsel fees, incurred in removing incumbrances.-See first case above from 10 Pick., p. 204. But grantee is not entitled to recover more than purchase money and interest.-Dimmick vs. Lockwood, 10 Wend., p. 142; Kent's Com., p. 476; Foote vs. Burnett, 10 Ohio, p. 317. See Rawle on Covenants for Title, pp. 155, 156, et seq., giving general rule-difficulty in its application-examine cases there cited. As to "extent to which covenants" against incumbrances run with the land and their assignability.-See id., pp. 383, 384, et seq., and notes. 50-vol. ii. Breach of agreement to convey real property. 3306. 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. NOTE. Detriment is the price paid. - Conger vs. Weaver, 20 N. Y., p. 140; Peters vs. McKeon, 4 Dẹn., p. 546; Baldwin vs. Munn, 2 Wend., p. 399; Flureau vs. Thornhill, 2 W. Blacks., p. 1078; Sikes vs. Wild, 4 Best & Sm., p. 421; affirming S. C., 1 id., p. 587. And necessary expenses and interest.-See Simons vs. Patchett, 7 E. & B., p. 572; Fletcher vs. Button, 6 Barb., p. 646; see Peters vs. M'Keon, 4 Den., p. 546. Adding difference between price paid and value when there is bad faith.-Trull vs. Granger, 8 N. Y., p. 115; Driggs vs. Dwight, 17 Wend., p. 71; Giles vs. O'Toole, 4 Barb., p. 261. Where the seller knew that he had not a good title, but had good reason to expect that he should be able to get it, this was held not to be a case of bad faith.-Sikes vs. Wild, 4 Best & Sm., p. 421; 1 id., p. 587. Such value to be estimated at time of breach.-Brinckerhoff vs. Phelps, 24 Barb., p. 100; see Peterson vs. Ayre, 13 C. B., p. 353; Tempest vs. Kilner, 3 id., p. 249. expenses preparing to enter upon the land.-See Driggs vs. Dwight, 17 Wend., p. 71; Giles vs. O'Toole, 4 Barb., p. 261; see Lawrence vs. Wardwell, 6 id., p. 423. Interest is allowed on such damages (Brinckerhoff vs. Phelps, 24 Barb., p. 100), but this follows from the general rule prescribed by Sec. 3287. The damages here depend much on the cause of the failure. If the vendor was honest and intended to make the sale, but was prevented by causes which he did not foresee and could not control, he will be subjected to only nominal damages, or the price, if paid, with interest; and in either case, the expense of investigating the title or similar purposes.-3 Parsons on Contracts, p. 229; Walker vs. Moore, 10 B. & C., p. 416; Worthington vs. Warrington, 8 C. B., p. 134; Thompson vs. Guthrie, 9 Leigh, p. 101; Combs vs. Tarlton, 2 Dana, p. 464; And Allen vs. Anderson, 2 Bibb., p. 415; Stewart vs. Noble, 3307. The detriment caused by the breach of an agreement to purchase an estate in real property, is 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. NOTE.-By the present law of New York, 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., p. 260; Franchot vs. Leach, 5 Cow., p. 506), unless he has actually sold the property to a third person.-Wilson vs. Holden, 16 Abb. Pr., p. 133. This rule is, however, an unjust one, as was admitted in Richards vs. Edick, 17 Barb., p. 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 to be changed by judicial intervention. This section follows the rule which is settled in England.-Laird vs. Pim, 7 M. & W., p. 474. "If the proposed vendee has taken the land, the measure of damages is of course the price of the land, with interest. If he has neither taken the land nor paid the price, in England the plaintiff receives only nominal damages, unless the land has fallen in value or he has otherwise suffered actual injury, on the ground that if he recovered the full price he would have that and the land too, because the recovery cannot have the effect of passing the fee of the land."-See 3 Parsons on Contracts, pp. 331-2; Hawkins vs. Kemp, 3 East, p. 410. It appears to have been assumed in Glazebrook vs. Woodrow, 8 T. R., p. 366, and in Goodison vs. Nunn, 4 id., p. 761, that if the vendor tenders a conveyance he might recover the purchase money. But in the case on which this section is founded, Laird vs. Pim, ante., |