Shurtleff

The following facts are undisputed: On January 10, 1920, respondent entered into a written contract to purchase a certain tract of land from appellant at an agreed price of $58,245.00; at this time a mortgage upon the property had been foreclosed and about seven months of the period for redemption had expired; on January 23, 1920, the respondent refused to accept title to the land; on February 13th appellant sold the land subject to the mortgage to one Toplitzky for $52,778.10; March 16th following Toplitzky sold to respondent for an advance of $1500 over the price paid by him.

The action is for damages for breach of contract, the amount claimed being the difference between the price called for in the contract of sale to respondent and the amount realized by appellant through her subsequent sale to Toplitzky, and amounting to $5,466.90. Both sides agree that section 3307 of the Civil Code provides the measure of damages. That section reads: “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 the seller, under the contract, over the value of the property to…