Aurand v. Perry Town Lot & Improvement Co.
| Decision Date | 28 October 1916 |
| Docket Number | 30877 |
| Citation | 159 N.W. 779,178 Iowa 262 |
| Parties | E. S. AURAND, Appellee, v. PERRY TOWN LOT & IMPROVEMENT COMPANY, Appellant |
| Court | Iowa Supreme Court |
Appeal from Perry Superior Court.--W. W. CARDELL, Judge.
THE issues in this case are similar to those in the case of C. T Kirkwood against this same defendant, decided at the present sitting, except that, in the instant case, there was no second contract to build a house. In this case there was a trial to a jury, and a verdict and judgment for plaintiff. The defendant appeals.
Affirmed.
H. G Giddings, for appellant.
W. H Winegar, for appellee.
Eight of these cases, involving somewhat similar questions, were submitted at the same time. Some of the cases involve the same questions as presented in others, but each contains some propositions not contained in the others. We shall notice, in this opinion and the others, only such questions as are not common to all.
The contract of purchase by plaintiff of a lot from defendant provided that:
"The seller will guarantee to the buyer that, within two years from the date of this contract, a street railway will be built and in operation from the main business portion of the city of Perry across the Dilenbeck Additions."
Plaintiff alleged that he had paid on his down payment and in monthly installments and interest upon the contract of purchase, $ 173.43, and that he expended $ 213.62 in improving said lot. The testimony is that plaintiff built a building on the back end of the lot that cost for material $ 135, and he expended $ 15 for taking the water in on the lot, and excavated for a building and had sand hauled for the building. Plaintiff also alleges a breach of the warranty in the contract, and alleges that, after the expiration of two years, plaintiff had rescinded said contract of purchase on account of said breach, and tendered back to defendant the written contract, together with possession of the lot and the improvements thereon, and demanded repayment of the amount paid upon said contract and the amount expended for improvements, which tender was refused by the defendant. Answering, defendant admitted that it was the owner of the real estate described at the date of the alleged contract, and denied all other allegations of the petition.
1. The first two assignments of error relate to the admission of evidence. This question was asked the plaintiff:
Over defendant's objection that it was incompetent, irrelevant and immaterial and not the proper measure of damages, the witness answered:
"I don't remember just what the cost was, but on refreshing my recollection, I find it amounts to $ 6."
And this question was asked plaintiff:
And over the same objection, witness answered:
"I think the carpenter work on that was in the neighborhood of $ 36."
The argument upon the first proposition is that, upon rescission of an executory contract of purchase of real estate by vendee for breach of warranty, he cannot recover for improvements, and that, where recovery for improvements is allowed, the rule is, according to appellant's contention, that the amount of compensation to which the purchaser is entitled for improvements constructed by him is not the amount expended, but the actual enhanced value of the land due to such improvements, as of the time at which the vendor takes possession of the land--citing 39 Cyc. 1440. No Iowa cases are cited on this proposition.
As we understand the record, plaintiff did not complete all the improvements or buildings he contemplated; that is, he had not done so up to the time of the rescission. Had he completed all the improvements and built his residence as contemplated, it is possible the rule contended for by defendant would apply, and it may be that such would have been the the better rule in this case. But, under the record, even though a rule is adopted which was not absolutely correct, still we think justice could have been done and was done under the rule adopted. The expenditure for improvements made by plaintiff, such as they were, would enhance the value of the lot. Plaintiff had the right to rescind because the street railroad was not built as agreed. Upon rescission, had appellant accepted back the property, the improvements already made would have been a part of the real estate, for which defendant would have received benefit. Defendant knew that plaintiff's purpose in buying the lot was to build thereon, and that plaintiff purchased the lot relying upon the warranty in regard to the street railroad. The money expended for improvements was in the nature of special damages. The court instructed, in substance, that, if plaintiff rescinded the contract of purchase, and he was all the time ready, willing and able since the rescission to make his tender and offer good, the burden was on plaintiff to show the amount he had been damaged by reason of the breach of the contract aside from the payments made thereon, and that, if the jury should find that plaintiff was entitled to recover on his account for expenditures, in addition to the payments on the contract, the jury should, after having ascertained the amount thereof under the evidence and instructions, add the amount so determined to the amount of the payments on the contract, and that this total would be the amount of the verdict.
Appellee relies upon the case of White v. Smith, 54 Iowa 233, 6 N.W. 284. That case was an action to recover damages for fraudulent representations, and it appeared that the defendant had sold plaintiff a lot, knowing that he intended to build a residence thereon, and had falsely represented that there was a street upon the north side of the lot, and the plaintiff purchased and erected a valuable residence, in reliance upon such representation, and with reference to the supposed street. It was held that the plaintiff was entitled to recover special damages, in addition to the difference in value of the lot--the difference between the market value of the house as a residence, with a street as represented, and without such street. But, as before stated, in the instant case, the buildings contemplated by plaintiff were not completed, and a part of the expense was bringing water on the lot; so that it would be difficult to say that the improvements in the instant case had a market value, as would a house. The courts have trouble sometimes in announcing a rule as to the measure of damages which is entirely satisfactory. But, as before stated, in this case we think that, under the rule adopted, substantial justice was done, and that there was no prejudice resulting to the defendant.
2. The court permitted plaintiff, over defendant's objection that it was irrelevant and immaterial, to testify that, before signing the contract, he read the paragraph in the contract in regard to the provisions as to building a street railway, and that he relied upon the guaranty, and would not have purchased the lot or signed the contract except for such conditions in the contract, and would not have made payment thereon. We think this was material, for the reason that the rescission was made because of a breach of this warranty, and, unless plaintiff had relied upon the warranty, he would not be in a position to claim a rescission. The only objection made by appellant at this point is that the consideration of such evidence would tend to confuse the jury, or create prejudice in their minds. This question was asked plaintiff:
"
The answer was, "I did." One objection to the question was that it was leading, and that is the objection now urged. The trial court has a...
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