Graves v. Winer

• Decision Date: 10 November 1961
• Citation: 351 S.W.2d 193
• Parties: James A. GRAVES, Appellant, v. Leonard WINER, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 193

351 S.W.2d 193

James A. GRAVES, Appellant, v. Leonard WINER, Appellee.

Court of Appeals of Kentucky.

Nov. 10, 1961.

Eblen, Howard & Milner, John M. Kelly, Lexington, for appellant.

George R. Smith, Lexington, for appellee.

PALMORE, Judge.

The appellant, Graves, offered a house and lot for sale at public auction. Winer, the appellee, was the successful bidder at a price of $9,650. The contract was reduced to writing, pursuant to which Winer paid $965 down and agreed to pay the balance of $8,675 on or before one month from date. He refused to perform and Graves brought this suit for specific performance or, if that remedy should not be decreed, for damages. Winer counter-claimed for a cancellation of the contract by reason of various alleged misrepresentations and for recovery of the $965 down payment. This appeal is from a judgment upholding the contract, awarding Graves $1 and costs, and, in effect, awarding Winer a return of the down payment.

Two principal points are advanced for the appellant, (1) that he was entitled to a jury trial and (2) that he was entitled to more than nominal damages. We are of the opinion, however, that if the proof did not support an award of actual damages the judgment gave the plaintiff all that a jury could have given him, and he was not prejudiced by the trial by court. Cf. Ferguson v. Akers, 1915, 165 Ky. 289, 176 S.W. 1149, 1151; Combs v. Burt & Brabb Lumber Co., 1905, 27 Ky.Law Rep. 439, 85 S.W. 227. Hence we shall examine the second question first.

The contract was made on November 1, 1957, and this suit was filed on December 12, 1957. Following the taking of several depositions by plaintiff, and then a pretrial conference, on June 23, 1958, the trial court entered an order determining that plaintiff was not entitled to specific performance 'but that the action should be tried upon plaintiff's alternative claim for damages and upon defendant's counterclaim for damages.' The cause was then referred to the Master Commissioner for hearing and report of findings and conclusions. Plaintiff did not take issue with this denial of specific performance, but he did insist upon, and was denied, a trial by jury of the common law issues.

The case finally came on before the commissioner on January 5, 1959, following which the hearing was adjourned from time to time and further depositions were taken by both parties. When he closed in chief plaintiff had failed to put on any evidence of damages, but on February 25, 1959, the commissioner, over objection, permitted him to do so after defendant had rested. He then proceeded to prove such items as lost rentals and sums paid out in taxes, insurance and maintenance. After completion of all testimony on February 25, 1959, the evidence was transcribed found that defendant had breached the contract who filed his report on July 2, 1959. In this report the commissioner found that defendant had breacvhed the contract but plaintiff had not proved any allowable damages and therefore could have only nominal recovery. He held defendant entitled to recover his deposit of $965 less the sum of $1 and costs.

On August 28, 1959, plaintiff again moved for a jury trial and tendered an amended complaint showing that he had sold the property in question at public auction on July 22, 1959, for the price of $8,500, thus establishing the amount of his principal item of damages. He asked $1,150 for his direct loss on the re-sale, $125 per month rent from December 1, 1957, to July 22, 1959, $140.56 costs of the second sale, $128.56 maintenance and insurance, and $84.72 taxes for the same period. On September 10, 1959, the trial court filed a written opinion confirming and adopting the commissioner's report and overruling plaintiff's motions. Judgment was entered accordingly.

For a breach by the vendee of a contract for the sale of land 'the quantum of damages is the difference between the contract price and the actual value of the land on the date of the breach, provided the actual value is less than the contract price. In addition, interest may be awarded.' Harmon v. Thompson, 1905, 119 Ky. 528, 27 Ky.Law Rep. 181, 84 S.W. 569, 573; Eaton v. Trautwein, 1941, 288 Ky. 97, 155 S.W.2d 474, 476. See also McBrayer v. Cohen, 1892, 92 Ky. 479, 13 Ky.Law Rep. 667, 18 S.W. 123, with respect to expenses incident to re-sale.

The object of compensatory damages is to put the injured party in the same condition, so far as money can do so, in which he would have been if the contract had been duly performed. Oleck, Damages to Persons and Property, Secs. 80, 229, 237, pp. 59, 439, 448. 'The injured party is entitled to all such damages as arise naturally from the breach of the rights which that contract was contemplated to assure.' Ibid., Sec. 85, pp. 73-74. See also 15 Am.Jur. 442 (Damages, Sec. 43); Hogg v. Edley, 1930, 236 Ky. 142, 32 S.W.2d 744.

Where a vendor has an enforcible contract of sale and obtains specific performance, the allowance of interest on the unpaid portion of the purchase price for such period of time as the property unavoidably lay idle in his possession after the money was due would fairly recompense the vendor's temporary loss of income on his investment. However, if in lieu of specific performance he recovers only the value of his lost bargain, interest on that amount may not be adequate to make him whole. Therefore, we are not prepared to say that a jilted vendor cannot have his lost rents (less, perhaps, interest on so much of the purchase price as has been paid him) if he brings suit promptly and proves the reasonable rental value of the property. This probably would occur only in the unusual case where a vendor sues for specific performance but for some reason not theretofore apparent is relegated to damages only. That happened in this case. The...