Fuller v. Mulhollan , 1909 Pa. Super. LEXIS 600 ( 1909 )

Opinion by

Henderson, J.,

The only question presented on the argument was that relating to the rule for the measure of damages stated by the court to the jury. The instruction on that point was in substance that the proportion which the coal mined by the Standard Coal Company bore to that which remained in the land would be the basis for ascertaining the damage and that this should be fixed with reference to the consideration agreed to be paid. This instruction was in harmony with numerous cases and was well applied in this instance: Lee v. Dean, 3 Whart. 316; Beaupland v. McKeen et al., 28 Pa. 124; McNair v. Compton, 35 Pa. 23; Terry v. Drabenstadt, 68 Pa. 400; Tyson v. Eyrick, 141 Pa. 296; Morris v. Phelps, 5 Johns. 49. The relative value which the part taken away bears to the whole determines the extent of the plaintiff’s injury and this is to be estimated with regard to the price fixed by the parties for the whole. It is, of course, competent to prove that the part to which the title has failed was of greater -or less value than the part actually conveyed, and the correct measure of damages is the value of the part taken in proportion to the value of the part which the vendee gets, the computation being on the basis of the purchase money. Under this rule either party may show peculiar advantages or disadvantages of the part for which the title failed, but this does not permit evidence of the value of the bargain. In the absence of fraud the consideration fixed by the parties limits the amount of recovery whether the contract be executed or executory: Hertzog v. Hertzog, 34 Pa. 418; Bowser v. Cessna, 62 Pa. 148; Burk v. Serrill, 80 Pa. 413; Tyson v. Eyrick, 141 Pa. 296. Where the vendor is guilty of fraud in the conveyance damages may be allowed in addition for all the expenses to which the plaintiff has been subjected by the fraud: McNair v. Compton, 35 Pa. 23. The appellant’s allegation is that a fraud was perpetrated on him and that he is entitled to damages amounting to the value of his bargain. He does not offer to rescind the contract, but seeks to charge the plaintiff with what he alleges to be the actual value of the coal removed by the Standard company. This he estimates to be from $1,200 to $1,500. The latter amount is what the plaintiff agreed to pay for the whole body of coal, to about five acres of which the plaintiff has a good title. As the amount lost was less than one acre the effect of a verdict according to the appellant’s contention would be to give the plaintiff about four-fifths of the coal for nothing; a result which shows the unreasonableness of such a basis for the measurement of damages. If the defendant had shown that the part taken had peculiar advantages or that he had incurred expense and made investments on the belief that the coal was in place the court would have admitted such evidence to be considered by the jury, but as the case was presented the jury was correctly instructed.

The judgment is affirmed.