As the contract did not show segregation of the price paid, so that the price paid for the land and for the water and water rights separately might be known, no allegation as to the price paid for the water and water rights could have been made, and the allegation that the refusal to convey resulted in damage to the plaintiff in the amount stated was sufficient under section 3306 of the Civil Code.

         JUDGES: Garoutte, J. Harrison, J., and Van Fleet, J., concurred.

         OPINION

          GAROUTTE, Judge

          [48 P. 499] This is an action to recover damages for the failure to convey certain water and water rights, and also to recover damages claimed on account of the defendants entering upon the premises of the plaintiffs, and shutting certain water off from plaintiffs' land. Plaintiffs bought a certain tract of land and also certain water rights and privileges from defendants, and paid therefor the lump sum of four thousand four hundred dollars. Defendants conveyed the land to plaintiffs, but refused to convey the water rights, and judgment for damages in the sum of two thousand dollars was awarded against them for such breach of the contract. From that judgment, and also from an order denying a new trial, this appeal is prosecuted.

         Defendants set forth three grounds upon which they rely for a reversal of the judgment and a new trial: 1. That the court erred in overruling defendant's demurrer to the complaint; 2. That the complaint does not state facts sufficient to constitute a cause of action; 3. That the evidence was insufficient to justify any judgment for the plaintiffs.

         If it be conceded that the court committed an error in overruling the demurrer to the complaint, which demurrer raised the question as to the misjoinder of causes of action, still the error resulted in no injury; for at the trial by an express order the court limited the evidence to the single question of the breach of the contract in not making a conveyance of the water rights, and the cause was tried upon those lines alone. For this reason, if there was error, it became harmless by the subsequent action of the court.

         It is claimed that the complaint failed to state a cause of action in not alleging the amount of money paid for the water rights. Section 3306 of the Civil Code provides: "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." In view of the fact that the land and water rights were purchased for a lump sum, the proportion of that sum paid for the water rights could not be segregated, and therefore no allegation as to such amount could be made; but there is an allegation found in the complaint that at the time the conveyance was demanded the value of the water rights was two thousand dollars. And this allegation completes the statement of a cause of action.

         In many cases, where a vendor agrees to convey two separate tracts of land for a lump sum, and, conveying one tract, refuses to convey the other, it would be difficult to apply the measure of damages provided for the vendee by the foregoing section; for, in such cases, it would be impossible to segregate the purchase price between the two tracts. But no such difficulty arises here, for the section provides that if bad faith on the part of vendor is shown, then the vendee is entitled to additional damages; that is, additional damages to the extent that the value of the property at the time of the breach exceeds the purchase price. In other words, in a case of bad faith upon the part of the vendor, the measure of damages will be the value at the time of the breach, if such value exceeds the purchase price; and, if the value of the land at the time of the breach is less than the purchase price, then that price will be the measure of damages. In the present case defendants were the owners of certain water rights and privileges. They agreed to convey those rights and privileges to plaintiffs, who paid them the purchase price therefor. Without any just reason or excuse upon their part, they refused to perform their contract. This was bad faith in the eyes of the foregoing section of the Civil Code. Bad faith being present, the measure of damages would, at least, be the value of the property at the date of the breach of the contract. For these reasons we conclude that the complaint stated a cause of action.

         It is claimed that the evidence does not sustain the judgment as to the amount of damages awarded. In this regard the evidence is sufficient.

         Judgment and order affirmed.