only prevail by showing that the defendant availed itself of the occasion, not for the purpose of protecting its interests, but to gratify its ill will. Upon this issue the burden of proof is upon the plaintiff in error.

The remarks of Judge Lewis in Strode v. Clement, 90 Va. 553, 19 S. E. 177, are applicable in this case: "There is no extrinsic evidence of malice, such as an antecedent grudge, or previous disputes, or anything of that sort, between the parties; but the contention is that the language used by the defendant is of itself evidence of malice. Undoubtedly, strong or violent language disproportioned to the occasion may raise an inference of malice, and thus lose the privilege that otherwise would attach to it. But when the occasion is privileged the tendency of the courts is not to submit the words to a too strict scrutiny, but rather to view them in the light of the facts as they appeared to the defendant; for the question is, not whether the imputations are true, but whether the words are such as the defendant might have honestly employed under the circumstances."

In this case there is no extrinsic evidence of malice, nor is the language complained of so violent or disproportioned to the occasion as to raise an inference of malice. In other words, there is no evidence of malice. If the issue before the jury had been as to the truth of Brown's account of what passed between Henretta and himself, the evidence would have required a verdict establishing as true Henretta's version, though a verdict in favor of the truth of Brown's statement could not with propriety have been disturbed by the court (Tyree v. Harrison [Va.] 42 S. E. 295); but the fact that the publication complained of was only made after the controversy between Brown and Henretta had been investigated, and that it embodies the results of that inquiry in accordance with the weight of evidence, clothed in temperate and decorous language, in the absence of any extrinsic fact or circumstance having such tendency, leaves the case stripped of any evidence to support the charge of malice, and the presumption that the publication was made in good faith must prevail.

In Tyree v. Harrison, supra, the jury rendered a verdict for the plaintiff in an action for libel. The court set aside that verdict, and at a subsequent trial rendered judgment for the defendant. Thereupon the plaintiff obtained a writ of error to this court, which reversed the case, and entered judgment for the plaintiff upon the first verdict. It was there held that it was for the jury to say which account was true,-that given by Tyree, or that given by Harrison; that the jury, in the exercise of their function, had seen fit to accept as true the statement of Tyree; and that, according to his account, the language used was so strong, violent, and abusive as to warrant an inference of malice, and destroy the privilege that would otherwise attach to the communication, or, at the

least, that this court was unable to say that the verdict of the jury was so plainly against the weight of evidence as to justify the interference of the court.

In the case under consideration we are not called upon to consider the weight or preponderance of evidence. There is no extrinsic evidence of malice, and the language of the communication of which complaint is made, and the manner of its publication, do not justify the imputation of malice, but rather tend to repel it. It does not name the person at whom it is directed. It states in language as mild as could have been employed the conclusion of the person charged with the duty of making the investigation, and that conclusion was warranted by the preponderance of evidence, which includes the testimony of every disinterested witness present upon the occasion.

Upon the whole case, we are of opinion that the judgment complained of should be affirmed.

(100 Va. (27)

FRANK V. FRANK. (Supreme Court of Appeals of Virginia. Nov. 20, 1902.)

BONDS-DELIVERY.

1. Where a debtor, a short time before his death, executed bonds for the amount of his debts, and placed them in the hands of another to be delivered at his death to the obligees named therein, the obligor parting with all dominion over them, the delivery was sufficient. Appeal from circuit court, Rockingham county.

Sipe & Harris and W. H. Bertram, for appellant. O. B. Roller, D. H. L Martz, and Winfield Liggatt, for appellee.

KEITH, P. Henry Frank, a short time before his death, caused six bonds, each for the sum of $250, to be written, signed, and placed in the hands of William Miller, to be delivered at his death to the obligees therein named. The bonds are in the following form:

"$250.00/100.

"One day after date I promise to pay to Luverna Eller Frank two hundred and fifty dollars, for value received of her, and I hereby waive the homestead exemption as to this debt.

"Witness my hand and seal this the 9th day of May, 1901.

"[6 cts. Revenue Stamp.]

"Henry Frank. [Seal.]"

In two of the bonds Luverna Ellen Frank was named as the obligee, one of which was delivered to her in person immediately upon its execution. After the bonds were written, Henry Frank executed his will, in which he provides that all of his just debts shall be paid, and then disposes of the residue of his estate. This will was duly attested, and there is no controversy concerning it. The sole question for our decision is, were the

bonds delivered by the testator in his lifetime?

Three witnesses were present with Henry Frank,-Benjamin F. Ralston, who wrote the bonds, J. W. Miller, and Lewis E. Swank. According to the testimony of Ralston and Swank, the bonds were written and signed. The will was then written and signed, and then Henry Frank delivered the bonds and will to Miller for safe-keeping; the bonds to be by him delivered upon the death of Henry Frank to the obligees named therein, and the will given to the executors therein named.

Miller's recollection of the transaction is that the bonds and will were delivered to him to be by him at the death of Henry Frank given to the executors named in the will, with instructions to deliver the bonds to the obligees therein named.

There is no material conflict, therefore, among these three witnesses, who are the only witnesses to the transaction. The only difference between the testimony of Miller and that of Ralston and Swank is that, according to his recollection, he was instructed to deliver the bonds and will to the execu tors, with instructions that the bonds should be delivered to the obligees; while according to the testimony of Ralston and Swank the bonds were to be delivered by Miller to those entitled to them. The delivery seems to have been unconditional and absolute. The obligor parted with all dominion over them. The obligees were his children who had remained with him, and rendered service to him, after they had attained the age of 21 years. It was his declared purpose to compensate them for this service. He regarded it as a debt, and put the evidence thereof in the most solemn form. There is not a circumstance in the record indicative of any purpose to impose any condition upon the complete delivery of these bonds, except that they were to be placed in the hands of the obligees after his death.

"Delivery is an indispensable requisite to the validity of a deed. It may be done by acts or words, or by both, by the grantor himself, or by another with the grantor's authority, to the grantee personally, or to a a stranger with subsequent ratification, although it do not reach the grantee until after the death of the grantor." Shep. Touch. 57, 58.

The delivery must be in the lifetime of the grantor, and yet there may be an inchoate delivery in the grantor's lifetime, which will become absolute on his death. Jackson v. Leek, 12 Wend. 107; Stone v. Duvall, 77 Ill. 475; Foster v. Mansfield, 3 Metc. (Mass.) 412, 37 Am. Dec. 154.

"Where a deed is left with a third person, with instructions to hold it until the grantor's death, and then to deliver it to the grantee, the weight of authority seems to be in favor of the doctrine that, if there is no reservation by the grantor of the privilege of recalling the deed before his death, but if he delivers it to the depositary with the abso

lute and final determination that it shall take effect when the contingency of his death happens, it will become operative upon its delivery, after his death, to the grantee, and such delivery will relate back to the prior delivery for the purpose of passing the grantor's title." Wheelwright v. Wheelwright, 2 Mass. 454, 3 Am. Dec. 66.

As we have seen, the delivery to Miller was unconditional. There was no reservation of a right to recall the bonds. They were placed in his hands to be delivered upon the obligor's death to the obligees, and that was done. It is immaterial here whether the delivery to Miller is to be regarded as a delivery in escrow, so that the bonds became effectual only upon the delivery by Miller to the obligees, or whether they were to be regarded as presently binding upon the obligor; and therefore we shall not consider the authorities in which that distinction is discussed.

We are of opinion that there is no error in the decree of the circuit court, which is affirmed.

(100 Va. 612)

STUART v. PENNIS. (Supreme Court of Appeals of Virginia. Nov. 20, 1902.)

SALE OF REALTY-BREACH OF CONTRACTDAMAGES.

1. The measure of damages on breach of contract for the sale and conveyance of real estate is the contract price, and not the difference between the contract price and the market value of the property at the time of the breach; and the purchaser can only recover the purchase money actually paid and interest thereon.

Error to circuit court, Russell county.

Action by D. C. Stuart against Mrs. S. P. Pennis. Judgment for defendant, and plaintiff brings error. Affirmed.

J. J. Stuart and Wm. E. Burns, for plaintiff in error. W. W. Bird and Henry & Graham, for defendant in error.

CARDWELL, J. This is a writ of error to a judgment in an action of trespass on the case in assumpsit on a contract entered into between plaintiff in error, D. C. Stuart, and defendant in error, Mrs. S. P. Pennis, on the 24th day of December, 1892, for the sale and purchase of standing timber at a stipulated price per tree. It is the sequel of a suit in equity between the same parties, which was twice appealed to this court, -once in 1895, when it was determined that the growing trees constituted a part of the soil, and that the contract was for such an interest in land that a bill for its specific enforcement would lie (91 Va. 688, 22 S. E. 509); again in 1899, when the decree of the circuit court dismissing complainant's bill upon its merits was affirmed, after being amended so as to permit him to bring his action at law upon the contract if he should be so advised (33 S. E. 1015); whereupon plaintiff in error instituted this action, and

his declaration, besides the common counts in assumpsit, contains a special count upon the express contract of the parties, as follows:

a

"And for this, also, that whereas, the plaintiff and defendant entered into contract which is in the words and figures following, to wit: 66 ''Contract.

"Bought of Mrs. S. P. Pennis all poplar timber between her residence and Mrs. E. C. Carter's, and between the Meade road and the Jessee's Mill road, and running with the top of Copper Ridge, and measuring twenty-four inches in diameter inside the bark, and up, and as much as thirty-two feet of merchantable timber at three dollars per tree, and all other poplar on her place of the same measurements and specifications, at two dollars per tree. Also white oak, ash, and cucumber trees on her place, of same dimensions, at one dollar and fifty cents per tree.

666

All timber is to be free from knots and all other visible defects. Three years is the time allowed for removing timber from land. One hundred dollars is to be paid January 1, 1893, and the remainder to be paid as the timber is taken away. The timber is to be inspected and marked as soon as practicable.

"'December 24th, 1892.'

"And, the plaintiff and defendant having entered into, signed, and delivered each to the other, in duplicate, the contract as above set out, the plaintiff afterwards, to wit, on the 2d day of January, 1893, attempted to inspect and mark the timber sold by said contract, but was prevented and prohibited by the defendant from doing so.

"And the plaintiff afterwards, to wit, on the 3d day of January, 1893, tendered to the defendant the sum of one hundred dollars, the amount to be paid to the defendant by the plaintiff under the terms of the contract aforesaid, whereupon the defendant refused to receive it, or to in any way comply with her said contract. Thereupon the plaintiff deposited the said sum in bank to the credit of the defendant, and notified her of such deposit.

"The plaintiff further avers that he has at all times been ready and willing to perform said contract, and has offered to do all things incumbent upon him by the terms thereof. The defendant hath refused, and still doth refuse, to perform the contract on her part, or to do any of the things incumbent upon her to do by the terms thereof, to the damage of the plaintiff $2,500.

"And therefore he brings his suit."

At the trial, upon defendant in error's plea of non assumpsit, plaintiff in error introduced evidence as to the market value of the timber at the time of the contract and at the date of the breach thereof, which evidence, upon motion of defendant in error, the court excluded, on the ground that the contract price was the measure of damages recoverable in the case, and not the difference between the contract price and the real value at the date of the contract or the market value at the time of the breach, to which ruling plaintiff in error excepted.

Plaintiff in error also offered in evidence a deed from defendant in error to one Mason, dated November 14, 1896, conveying a part of the land upon which a portion of the timber referred to in her contract with plaintiff in error of December 24, 1892, set out above, is located, and to the introduction of which deed defendant in error objected, the

objection was sustained, and plaintiff in error again excepted. These two exceptions are made the grounds, respectively, of plaintiff in error's first and second assignments of error, and will be considered in inverse order.

With reference to the second assignment of error, it is only necessary to say that, as the deed was not executed until nearly five years after the breach of the contract sued on, it was irrelevant, and was, therefore, properly excluded.

The subject-matter of the contract being real estate (Stuart v. Pennis, supra), the general rule pertaining to damages recoverable by a vendee from a vendor on a breach of a contract for the sale and conveyance of real estate, or for a breach or a covenant to warrant the title to real estate conveyed, is applicable, unless the case can be brought within some exception to the general rule.

In Thompson's Ex'r v. Guthrie's Adm'r, 9 Leigh, 101, 33 Am. Dec. 225, following Stout V. Jackson, 2 Rand. 132, Threlkeld's Adm'r v. Fitzhugh's Ex'x, 2 Leigh, 451, Mills v. Bell, 3 Call, 320, and the leading English case of Flureau v. Thornhill, 2 W. Bl. 1078, it is shown that the rule is as applicable to executory contracts as to those executed, and that the vendee is not entitled to more damages than the purchase money he has actually paid and interest thereon. "For this," says the opinion in that case, "he ought to be compensated, if the land falls in value; and no more than compensated if it rises. Such a rule offers no temptation to the vendor to violate his contract, because, if he has a good title, the vendee can claim specific performance in a court of chancery, instead of bringing his action at law."

It is true, as pointed out in the argument of the case at bar, the doctrine announced in Flureau v. Thornhill and Thompson's Ex'r v. Guthrie's Adm'r has not been uniformly followed in the supreme court of the United States and several of the state courts, but it has been recognized as a settled doctrine in a number of decisions by this court, viz.: Wilson v. Spencer, 11 Leigh, 271; Newbrough v. Walker, 8 Grat. 16, 56 Am. Dec. 127; Chick v. Green, 77 Va. 835; Sheffey's Ex'r v. Gardiner, 79 Va. 313; Abernathy v. Phillips, 82 Va. 709, 1 S. E. 113; Conrad v. Effinger, 87 Va. 59, 12 S. E. 2, 24 Am. St. Rep. 646; and Roller v. Effinger's Ex'r, 88 Va. 641, 14 S. E. 337.

It is contended, however, that the rule does not extend to the case of a party who simply refuses to perform his contract in order to secure a more advantageous bargain; and Wilson v. Spencer, supra, is relied on as sustaining this view. The opinion of the court in that case, instead of departing from or qualifying the rule laid down in Thompson's Ex'r v. Guthrie's Adm'r, supra, distinctly recognized it as well established, and sustained the ruling of the lower court allowing proof as to the value of the land at the time of the breach, upon grounds that do not exist in the

The elaborate opinion adheres to the rule laid down in Thompson's Ex'r v. Guthrie's Adm'r, but treats the case under consideration as coming within an exception to that rule.

Mr. Minor, discussing this subject, and citIng a number of authorities, among which are the Virginia cases to which we have referred, including Wilson v. Spencer, supra (2 Min. Inst. 865), says: "But nothing can be allowed for the loss of a bargain, even though there may have been an actual increase in the market value of the land, and much less where the loss is of a purely speculative character, as of profits which he (the plaintiff) might, perhaps, have realized by advantageous employment of the property, or otherwise." Again, on page 866, it is said: "And It will be observed that for the most part the best standard whereby to determine the value of the land is the purchase money;" citing, among others, the case of Wilson v. Spencer. He then sets out. as held in Wilson v. Spencer, that an exception to the rule is where the vendor's breach of contract results, not from his misfortune in proving to be not entitled to land of which he believed himself to be the owner, but from his misconduct, or from his undue precipitancy; as, for example, where he had subsequently conveyed to another person, or where he has entered into a contract to sell before he had himself acquired title to the land.

Suppose, then, it were conceded in this case that plaintiff in error, under the declaration he has filed, had the right to have the evidence adduced by him to show a purpose on the part of defendant in error, in refusing to perform her contract, to secure a more advantageous bargain, considered by the jury, was it sufficient to take the case from the control of the general rule we have been discussing, and bring it within the exception stated by Mr. Minor and in Wilson v. Spencer? We think not. The contract sued on states the price of the timber per tree as agreed on between the parties. Defendant in error owned the timber and the land upon which it stood when she entered into the contract, and still owned both at the time of its alleged breach, and the special breach alleged is that plaintiff in error "on the 2d day of January, 1893, attempted to inspect and mark the timber sold by the said contract, but was prevented and prohibited by

any evidence in the record from which it might, perhaps, have been inferred that defendant in error, "for the purpose of making a more advantageous bargain," refused to allow the timber to be inspected and marked, it appears in her letter of January 2, 1893, introduced in evidence by plaintiff in error, addressed to him as "Dear Dale," in which she says: "I have decided to ask you to let me out of our timber trade. My neighbors, I hear, are selling poplar trees at $5.00. Besides this, I need the money for my timber at once. You can spend your time as profitably in some other affair, and let me keep my timber, and get more for it, if I can, from somebody else." A letter of later date, also introduced by plaintiff in error, shows that she thought he had let her off.

Viewing the case, therefore, in the light of the facts and circumstances surrounding it, including those intended to be shown by the evidence ruled out by the learned judge below, we see nothing to take the case from the control of the general rule that the measure of damages is the contract price, and not the difference between the contract price and the market value of the property at the time of the breach.

Plaintiff in error having admitted at the trial that he had gotten back the $100 deposited by him in bank to the credit of defendant in error, and therefore had paid nothing on the contract, the verdict of the jury is in accordance with the law and evidence in the case, and the judgment is affirmed.

(100 Va. 660)

NICHOLAS et al. v. NICHOLAS et al. (Supreme Court of Appeals of Virginia. Nov. 20, 1902.)

GIFT OF LAND-POSSESSION-IMPROVEMENTS -EFFECT-SUPPORT OF FATHER.

1. Under Code, § 2413, providing that no estate of inheritance or for a term of years shall be conveyed, unless by deed or will, nor shall any right of conveyance accrue to the donee of land under a gift not in writing, though followed by possession and improvement of the land, where a father placed a son in possession of land after the enactment of that section, and the son improved said land, he acquired no title thereto.

2. There is no implied contract by a father to pay his son for board and attention furnished him.

Appeal from circuit court, Rockingham county.

Suit between George M. and W. S. Nicholas and Frank L. Nicholas and others. From the judgment, George M. and W. S. Nicholas appeal. Reversed in part.

Winfield Liggett and Marshall McCormick, for appellants. Sipe & Harris and John E. Roller, for appellees.

For opinions on petitions to rehear, see 42 S. E. 866. 1. See Gifts, vol. 24, Cent. Dig. §§ 43, 46, 47.

KEITH, P. J. B. Nicholas was seised during his lifetime of several parcels of real estate in the county of Rockingham. He gave one of these tracts, valued at $7,000, to his son Charles H. Nicholas. The donee was put in possession about the year 1880, and thereafter placed valuable improvements upon it, and exercised exclusive ownership over it until his father's death.

In 1872 the father placed J. J. Nicholas, another son, in possession as tenant of what is known as the "Palmer Tract," consisting of 125 acres. In 1887 his father proposed to him that he should take this tract at $10,000, $8,000 of which was to be treated as an advancement, and $2,000 to be paid after his father's death, and one-quarter of the grain raised upon the place was to be paid to the father during his lifetime in lieu of interest. After this arrangement, J. J. Nicholas exercised complete ownership over the property, made improvements upon it, and has ever since remained in possession.

With respect to the land claimed by F. L. Nicholas, the evidence fails to establish a parol gift to him prior to the 1st day of May, 1888, but, on the contrary, it appears that he was placed in possession of the lands of which he now claims to be the owner after that date.

The circuit court entered a decree which declares that Charles H. Nicholas, J. J. Nicholas, and Frank L. Nicholas shall be quieted in the possession and ownership of the respective tracts of land held by them. From this decree, George M. and W. S. Nicholas appealed.

We are of opinion that with respect to so much of the decree as confirms the title of Charles H. Nicholas and J. J. Nicholas there is no error, but that the decree is erroneous in so far as it undertakes to establish the claim and quiet the title of Frank L. Nicholas to the home place, of 230 acres; the evidence being too vague and indefinite to support his contention, which, in our judgment, is put at rest by section 2413 of the Code, which is as follows:

"No estate of inheritance or freehold, or for a term for more than five years, in lands, shall be conveyed unless by deed or will, nor shall any voluntary partition of lands by coparceners, having such an estate therein, be made, except by deed; nor shall any right to a conveyance of any such estate or term in land accrue to the donee of the land or those claiming under him, under a gift or promise of gift of the same hereafter made and not in writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee or those claiming under him."

The case before us is within the mischief aimed at by the section just quoted. Section 2561, which treats of advancements to be brought into hotchpot, is in the following words:

"Where any descendant of a person dying intestate as to his estate or any part there

of, shall have received from such intestate in his lifetime, or under his will, any estate, real or personal, by way of advancement, and he or any descendant of his, shall come into the partition and distribution of the estate with the other parceners and distributees, such advancement shall be brought into hotchpot with the whole estate, real and personal, descended or distributable, and thereupon such party shall be entitled to his proper portion of the estate, real and personal."

The two sections above quoted must be read together. "The true notion of an advancement is a giving by anticipation the whole or a part of what is supposed a child will be entitled to on the death of a parent." Chinn v. Murray, 4 Grat. 397. A gift, then, by a father to a child, of real estate, since the 1st of May, 1888, or a promise of a gift "hereafter made and not in writing, although such gift or promise be followed by possession thereunder and improvement of the land by the donee or those claiming under him," carried with it no right to a conveyance of the land to the donee. The terms of section 2413 seem necessarily to embrace such transactions as that under investigation, and the cases cited by the revisors in connection with that section show that gifts of land by a parent to a child were within the contemplation of those who prepared the section. Burkholder v. Ludlam, 30 Grat. 255, 32 Am. Rep. 668; Stokes v. Oliver, 76 Va. 72; Griggsby v. Osborne, 82 Va. 371. Indeed, Judge Burks, one of the revisers, in speaking of the change wrought by section 2413 of the Code, says:

"Even a parol gift of land, if possession was taken by the donee and a large expenditure was made by him in improving the land, was treated in equity as a valid sale, and was allowed to be set up on oral testimony alone. This was a most prolific source of fraud.

"Voluntary partition, also, of land by coparceners, was considered as not within the operation of the statute requiring a deed to convey an estate of inheritance or freehold, and therefore partition by parol was upheld.

"In both of these instances the law was changed by the revision so as to require writing." 4 Reports Virginia State Bar Ass'n (1891) pp. 117, 118.

We are also of opinion that there is no error in the decree rejecting the claim of Frank L. Nicholas for board and attention to his father during his lifetime. The commissioner reported against this claim, the circuit court concurred with the commissioner, and the evidence is not such as to warrant us in reversing its decree upon this point. Stoneburner v. Motley, 95 Va. 784. 30 S. E. 364, and Jackson's Adm'r v. Jackson, 96 Va. 165, 31 S. E. 78.

The decree complained of should be reversed in so far as it undertakes to establish the title of Frank L. Nicholas to the home place, and in all other respects affirmed.