Neal v. Medlin , 1927 Ga. App. LEXIS 325 ( 1927 )

Bull, J.

This was an action by the grantee against the grantor for a breach of warranty in the sale of an undivided third interest in certain land in Gordon county. The case is here upon exceptions to the dismissal of the petition on general demurrer. The following facts were alleged in the petition: After the plaintiff entered into possession of the land, she and her co-owners received a bona fide offer from other persons to purchase the same at a price of $4,989, but when the offerers examined the title they found that the defendant at the time of conveying to the plaintiff held title to only an undivided fourth interest in the land, and that the plaintiff’s title therefore was good only as to this interest; whereupon the offer was withdrawn. The defect in the title was because of an outstanding paramount title to an undivided fourth interest in one Hamrick. The plaintiff incurred an expense of $100 in obtaining a quitclaim deed from Hamrick, this sum being paid to J. G. B. Erwin for his services as an attorney in procuring the deed. The petition alleged that the plaintiff paid to “said adverse claimant a sum named in the quitclaim deed;” but there was nothing to show the amount of such payment. The plaintiff prayed to recover as her damages the item of $100 paid to her attorney, and also one third of the difference between $4,989, the amount of the offer that was,withdrawn, and $2,200, the proceeds of the actual sale which she subsequently made to others at the best price then obtainable.

The plaintiff can not recover for the alleged loss of profits under the allegations made. Damages recoverable for a breach of contract are such as arise naturally and according to the usual course of things from such breach, and such as the parties contemplated when the contract was made as the probable result of its breach. Civil Code (1910), § 4395. This is substantially the rule as enunciated at common law in the famous old English case of Hadley v. Baxendale, 9 Exch. 341. With reference to a breach of warranty of title to land, the code provides that “the damages should be the purchase-money with interest thereon from the time of the sale.” Civil Code (1910), § 4400. See further, in this connection, Sanderlin v. Willis, 94 Ga. 171 (3) (21 S. E. 291); Orr v. Farmers Warehouse Co., 97 Ga. 241 (4) (22 S. E. 937). But this is not the measure in the present case, because the land was not lost. If' the plaintiff had “fairly and reasonably paid a sum of money to remove an encumbrance” or other defect, this sum would have been recoverable. Amos v. Cosby, 74 Ga. 793 (1); Martin v. Hamlet, 159 Ga. 465 (126 S. E. 371). But there is nothing to show what sum the plaintiff paid for the outstanding interest, and, furthermore, there is no claim of damage on that account. The Supreme Court has held that,as a general rule attorney’s fees are not recoverable in an action for a breach of warranty. Taylor v. Allen, 131 Ga. 416 (4) (62 S. E. 291). No reason for an exception to this rule appears in the present case.

The plaintiff is seeking to recover special damages only, and is not entitled to recover any of the damages sued for. In such a case, a cause of action is not stated. The plaintiff claims that she is entitled at least to nominal damages, but “the rule that in every case of breach of contract the other party has the right to recover nominal damages does not apply where only special . . damages are sued for, and where such damages are not recoverable.” Hadden v. Southern Messenger Service, 135 Ga. 372 (3) (69 S. E. 480). “Where the petition can not be construed as asking for general or nominal damages, but is expressly limited to a prayer for special damages only, and these are not recoverable, the suit' is not maintainable, and is subject to be dismissed on demurrer. Sparks Milling Co. v. Western Union Tel. Co., 9 Ga. App. 728 (72 S. E. 179).” Truitt v. Rust Sales Co., 25 Ga. App. 62 (2) (102 S. E. 645). See also Christophulos Café Co. v. Phillips, 4 Ga. App. 819 (62 S. E. 562). The court properly sustained the demurrer and dismissed the petition.

From what has been said, it has been unnecessary to set forth or to consider the allegations made for the purpose of showing ouster or an equivalent disturbance. The petition may or may not have been sufficient in that respect. If not, the court properly struck it for that reason also. But our decision is confined to the propositions stated above, other points being assumed in favor of the plaintiff in error.

Judgment affirmed.

Jenkins, P. J., and Stephens, J., concur.