A reconsideration of this case on rehearing has convinced the Court that our previous opinion and decision filed December 5, 1932, should be modified to accord with the true intent of the holding of this Court in Key v. Alexander,91 Fla. 975, 108 Sou. Rep. 883. In that case it was decided that a person breaching a valid contract to convey land is liable for the value of the bargain at the time of the breach, with interest from that date, where the contract was entered into through a want of good faith on the part of the vendor, in his entering into an undertaking to deliver a title which he did not have, or which he refuses to deliver as agreed, on the pretext that his wife will not join in the agreed conveyance.

In this case the value of the bargain at the time of the breach, was the value placed upon it at the time when the vendee elected to sell his bargain to a subsequent purchaser of his own.

The value of the bargain to vendee Carmeris does not include possible damages which the vendee may himself be compelled to pay to this own vendee, by reason of the fact that he, while well knowing that he had not obtained title from Liberis, voluntarily incurred through entering into a contract of his own to convey that to which he himself had not obtained title. Especially is this true, where no such damages have been actually recovered against him. *Page 357

Here Liberis contracted to sell certain land to Carmeris for $2,000.00. Carmeris contracted to re-sell the same land to another for $3,000.00. Neither had title to that which they contracted to sell. By his own act, Carmeris fixed the value of his bargain at what he would have realized as his profit, had Liberis gone ahead with the trade. Had Liberis performed Carmeris could have realized no greater price. Therefore Carmeris cannot be allowed to recover, in addition to the value of his bargain, the speculative amount of damages to which he may have laid himself liable to his own vendee, by entering into a contract to convey land which he well knew at the time had not been conveyed to him by Liberis as agreed.

Such possible liability of Carmeris for damages, if it exists, can legitimately constitute no part of the value of Carmeris' bargain as it was contemplated at the time the contract between Liberis and Carmeris was made. Nor can such element of damage be recovered indirectly, on the theory that the same now represents part of the value of the land at the time of the breach.

So far as Carmeris was concerned, the value of the land as to him was fixed by his own agreement to resell it for $3,000.00. Had he elected to hold it and not to sell it to another, his damages would have been determined by the value of the land he was entitled to get from Liberis at the time of Liberis' breach. This value might, or might not, have been $3,500.00, more or less, had the situation of the parties remained unchanged when the breach of Liberis occurred.

Our former opinion must therefore be modified to accord with the views here stated in this opinion on rehearing. By reason of this modification, the decree appealed from must be adjudged excessive in amount, notwithstanding the fact that it is otherwise proper and such as ought to have been entered on the record, for the reasons pointed out in our *Page 358 former opinion, which opinion, as hereby modified, is adhered to on this rehearing.

The decree appealed from is reversed, with directions to enter a modified decree in accordance with this opinion on rehearing.

Reversed on rehearing, and remanded with directions to modify decree.

DAVIS, C.J. AND WHITFIELD, BROWN AND BUFORD, J.J., concur.