Harris v. Schenkel

The opinion of the court was delivered

Pee Curiam.

Defendants moved for summary judgment. The trial court found a triable issue as to liability, and we agree. It concluded, however, that no damages were shown and on that basis granted the motion. We think that elements of damages appeared. The alleged violation of the broker’s agreement supports a claim for nominal damages. In addition there is the obligation incurred by plaintiffs to their attorney for preparation of the proposed contract of sale, and perhaps also economic loss in omitting to seek other utilization of the property on the strength of what plaintiffs thought were bona fide negotiations conducted in accordance with instructions to the defendant broker. As to mental anguish and punitive damages, we think it unwise to express any opinion at this stage for want of a definitive factual setting. See generally Prosser, Torts (2d ed. 1955), § 2, pp. 9-11; § 11, p. 38; 1 Harper and James, Law of Torts (1956), § 9.1, p. 665.

The judgment is reversed, costs to abide the event of the trial.

For reversal—Chief Justice Weietteaub, and Justices Wacheeteeld, Buelihg, Jacobs, Eeaetcis and Peoctoe—6.

For affirmance—Justice Hehee—1.