Heidelberg v. Newton ( 1927 )

We think the judgment is erroneous. It appeared without dispute in the testimony that possession of the property appellee purchased was delivered to him, and that he had moved parts of the building and all of the furniture and furnishings therein to a warehouse he owned at the time appellant committed the trespass complained of. It was not pretended that any of the property Appellee purchased was not delivered to him, nor that any of that delivered to him was not as it was represented to him to be at the time he purchased it. Clearly, therefore, appellee was not entitled to have the notes and trust deed securing same canceled on the theory that the consideration therefor had failed. If he had a cause of action against appellant, it was one for damages alone, and on the theory that appellant's act in tearing down the part of the building left on the lots was unlawful. It was on this theory, it seems, that the trial court awarded appellee a recovery of the $50 he paid Hawthorn and the $300 he expended in preparing to move the building. It is clear, we think, that the sums so expended by appellee were not recoverable by him on the allegations in his pleadings, and that the measure of his damages, instead, was the value the part of the building not removed by him from the Byrd Bros.' lots would have possessed had same been moved to the lots he contemplated moving same to, less the cost of moving it to those lots. Ry. Co. v. Scott, 172 Ky. 183, 189 S.W. 7, L.R.A. 1917C, 1038.

The judgment will be reversed, and the cause will he remanded to the court below for a new trial.