By the Court,
Upon the former trial of this cause it was decided at the circuit that the plaintiff was not entitled to recover any thing beyond the' amount paid by her to the defendant, at the time of the execution of the agreement, with the interest. This was held to be erroneous, by the general term, upon appeal, and the rule of damages was decided to be the value of the land at the time of the breach, and interest from that time. The learned judge who wrote *472the opinion placed his decision xipon the ground that the defendant either made a contract, which he knew he had no right to make, or he arbitrarily refused to fulfill when he found he could get more than tho price for the land which the plaintiff had agreed to pay. (24 Barb. 105.) It is obvious-that unless the facts of the case were materially changed upon the second trial, or unless the principle laid down by the court in the opinion refex’red to has been overruled by some subsequent adjudication, the question now presented must be regarded as res adjudicate.
First. It is insisted by the defendant in regal’d to the first proposition that the facts of the case are entirely different from those presented on the former trial; that there was then no evidence of the good faith of the defendant, and the judgment of the general term was based upon the ground that want of faith might be imputed to him; whereas now the case establishes that the defendant acted in good faith and made every effort- to have the contract performed.
The additional facts proven upon the second trial, xvhile they tend to establish that the defendant believed that Mrs. Van Eensselaer would assent to the execution of the deed to the plaintiff!, do not negative the conceded fact that he knew that he was prohibited from selling without her consent; or that he was not ignorant of his want of power in this respect. Nor does the defendant satisfactorily explain why he did not disclose to the plaintiff the paroi agreement between himself and Mi’s. Van Eensselaer, dispensing with her consent, which was expressly required by the terms of the trust deed; nor why he retained the money paid by the plaintiff upon her contract; and why he united with Mrs. Van Eensselaer in selling the same property at an advanced rate to a third party, without any consultation with the plaintiff; without notifying her, and in fact without any offer on his part to convey such title as he had to the premises in question. It is by no means clear, I think, from the evidence that the defendant proved that he acted in good faith, *473or that he was in a position to claim that such was the fact. But suppose he had established good faith on his part; does that improve his condition, if he had knowledge that he had no right to convey ? It was not the want of good faith upon which the decision was made by the general term, but upon the fact that he had knowledge or arbitrarily refused to convey. Either the one or the other made him liable. If he sold the land knowing that he had no authoiv ity to convey, then the question of good faith can not arise, and he can not claim and is not entitled to any protection upon that ground. If under such circumstances he assumes to sell without being in a situation to convey, and without the power to confer any title, he does it at his peril, and can not claim the protection of a vendor in good faith. He violates his contract, and must be held responsible for the damage sustained by a breach of it. (Hopkins v. Gazebrook, 13 Eng. Com. Law, 100, 101. Hopkins v. Lee, 9 Wheat. 109. Robinson v. Harman, 1 Exch. R. 849. Hill v. Hobart, 16 Maine Rep. 169. Trull v. Granger, 4 Seld. 115. Fletcher v. Button, 6 Barb. 650.) It is evident that the defendant knew that he had no power to convey, and there is no evidence to show that he disclosed to the plaintiff his want of power. The case is clearly distinguishable from one where a party acts under the honest but mistaken belief that he had a good title, and does every thing in his power to execute the contract.
Second. I think that the principle established in 24 Barb. 100, has not been overruled by the case of Conger v. Weaver, (20 N. Y. Rep. 140,) and that the recovery in the case at bar can be upheld within that decision. That was an action brought to recover damages for the breach of an executory contract for the sale of a farm. The defendant tendered a warranty deed executed by himself and wife, which the plaintiff refused to accept, alleging that it did not convey a good title free from all incumbrances. The fact was, that the defendant had a good title to all but five and three fourth acres *474of the wnole farm, and as to this, the evidence was conflicting whether the conveyance was made to the defendant or to his father, the deed having been destroyed by fire. It was apparent that the defendant had acted in good faith, and the court of appeals held that only nominal damages were recoverable for the the failure of the vendor to perform an executory contract for the conveyance of land, made in good faith and broken without fraud, by reason of his inability to make a good title. Denio, J. who delivered the opinion of the court, in referring to the case at bar remarks, that the judgment, as he understands it, was placed upon the distinction established in 2 Wend. and 4 Denio, of a contract made with knowledge on the part of the vendor that he had no title, or of a dishonest refusal to convey because a better price could be obtained from another purchaser. It will be seen that there is no analogy between the case cited and the present one. There was no pretense that the defendant in Conger v. Weaver had knowledge of the defect in his title; and the evidence shows that he did all in his power to carry out the contract. I understand the learned judge to assent to the correctness of the distinction recognized by Judge Glould in his opinion; and in no way to question the authority of that case.
In Baldwin v. Munn, (2 Wend. 399,) one of the cases cited by Judge Denio, the refusal to convey was placed upon the ground that after the making of the contract the defendant had ascertained that his grantor had conveyed to another party before he deeded the land to him.
In Peters v. McKeon, (4 Denio, 546,) the other case cited, the defendant could not make a perfect title to an undivided twenty-fourth part owned by an infant, as to which he offered a covenant by a third party, that the infant would convey on coming of age. The defendant tendered a deed and offered such title as he had, which the plaintiff refused to receive. Neither of these cases sustains the defendant’s po*475sition. They were disposed of upon facts ennirely different from those presented in the case at bar.
[Albany General Term,
December 5, 1864.
I see no difficulty in reconciling the cases cited with Brinckerhoof v. Phelps, (24 Barb. 100,) and discover no adjudication which disturbs the doctrine there laid down. It therefore must be considered as decisive and controlling in this case. Although the contract describes the defendant as a trustee, yet it does not state for whom, and I think does not relieve him from personal responsibility, nor change the legal effect of his contract. (Taft v. Brewster, 9 John. 334. White v. Skinner, 13 John. 307. De Witt v. Walton, 5 Seld. 570. Brinckerhoof v. Phelps, 24 Barb. 100.)
It is conceded that there was a mistake in allowing interest on $318.25 paid to the defendant on the 13th of June, 1849, in addition to the excess of the value of the property beyond the amount remaining unpaid; and this amount, being $202.02, should be deducted from the amount of the verdict.
Upon the plaintiff stipulating to deduct the above mentioned amount, judgment should be entered on the verdict in favor of the plaintiff, with costs.
Peckham, Miller and Ingalls, Justices.]