Dudock v. Alexander

OPINION OF COURT.

The following is taken, verbatim, from the opinion.

WASHBURN, PJ.

We cannot agree with plaintiff’s construction of this contract. We think that the language quoted must be construed in connection with the other provisions of the contract, and that when so construed, it means that if plaintiff failed to deliver a deed of her property because she was not able to convey it free from incumbrance, she should have a right to the return of the money paid, and that a failure to deliver simply because the plaintiff did not choose to fulfill her contract, constituted a breach of the contract, and, under th'e pleadings in this case, entitled Mrs. Upperman to damages against the plaintiff for such breach.

The court erred, however, in the assessment of damages. The proper measure of damages was not observed either in the evidence offered or in the judgment.

In situations like this, the general rule is that if the purchaser abandons the contract and fails to perform, the measure of damages is the contract price less the value of the real estate sold. Evidence was introduced tending to show that in consequence of plaintiff’s insisting that she be given possession, Mrs. Up-perman was put to some slight expense in having her tenants vacate the premises, and that she lost a small amount of rent. This, we think, in view of the conduct of the parties as shown by the record, being properly plead, wa.s a proper element of damages to be' considered.

The claim was also made, in the pleadings, and some evidence was introduced in support thereof, that while Mrs. Upperman had no contract therefor, she would be liable to Mr. Alexander, who was her agent in renting and managing the property, for a commission for-the sale of the same. Under the circumstances of this case, we do not think that this was a proper element of damages.

The same reasoning applies to the item for cost of certificate of title, which Mrs. Upper-man procured in anticipation of the contract being fulfilled.

Even if these items could be properly cofi-sidered, the judgment exceeds the. damages shown By the record, and, the judgment not being sustained by the evidence, is reversed and the cause remanded.

(Funk, J. and Pardee, J., concur.)