DocketNumber: 3 Div. 960.
Citation Numbers: 138 So. 282, 224 Ala. 17
Judges: PER CURIAM.
Filed Date: 6/18/1931
Status: Precedential
Modified Date: 1/11/2023
The case was put on rehearing by the court for consideration of the measure of damages under the evidence disclosed, and is now further considered on the time in which interest would be computed.
It is established that where a tort action is waived and that action upon a contract, express or implied, is maintained, the measure of damages is governed by the rules applicable to like actions on contracts. Where the contract is to deliver notes, the measure of damages for the breach, in the absence of any further proof of the value of the notes, is their face value with interest. Caldwell v. Kuykendall,
In this jurisdiction the damages for the breach of a contract should restore the injured party to the condition he would have occupied if the contract had been fully performed. Nunnally Co. v. Bromberg Co.,
It is further declared that the measure of damages for the breach of contract to pay money is ordinarily the principal and interest, unless the obligation to pay is special and refers to other objects than the mere discharge of the debt, in which case special damages may be recovered according to actual injury sustained. Bixby-Theirson Lumber Co. v. Evans,
Such being the recognized rule, the consideration paid for the transfer and assignment of writings (in evidence) for the security and payment of money being shown by the evidence, we hold that where documents (as these) are not genuine by the product of forgeries, the recited consideration makes a prima facie case of the measure of damages. Such inquiries as whether such purported maker and grantor, or his ownership of the alleged properties embraced in the mortgage, or its value at the time of the assignment, or the ability of such maker to respond to judgment for such amount if it had been his undertaking to pay and discharge in money according to the tenor of the instrument, are inquiries beside the issues of fact for decision.
To accede to the contention made as to measure of damages as next above adverted to, would destroy the guaranty on which the contract of transfer and assignment was made — that there was the purported maker and security described. We are not now considering values of property, or the credit or judgment liability of the maker, but that of the implication of genuineness imported by the acts of transfer and assignment on which the recited consideration as shown by the evidence was paid.
In the case of Fogleman v. National Surety Co.,
The plaintiff is entitled to the purchase price, with interest from the date of payment.
The application for rehearing is denied.
Nunnally Co. v. Bromberg Co. , 217 Ala. 180 ( 1928 )
Mobile, M. G. S. S. v. Postal Telegraph-Cable , 216 Ala. 576 ( 1927 )
Mobile, M.G.S.S. Co. v. Post. Telegraph-Cable Co. , 22 Ala. App. 207 ( 1927 )
Pyle v. Pizitz , 215 Ala. 398 ( 1926 )
Fogleman v. National Surety Co. , 222 Ala. 265 ( 1931 )