Rubey v. Irick

• Decision Date: 19 February 1917
• Docket Number: 6792.
• Citation: 163 P. 514,63 Okla. 137,1917 OK 158
• Parties: RUBEY v. IRICK.
• Court: Oklahoma Supreme Court

163 P. 514

63 Okla. 137, 1917 OK 158

RUBEY v. IRICK.

No. 6792.

Supreme Court of Oklahoma

February 19, 1917

Syllabus by the Court.

The measure of damages for breach of a covenant of warranty is governed by section 2856, Rev. Laws Okl. 1910, which provides: "The detriment caused by the breach of a covenant of seisin, of right to convey, of warranty, or of quiet enjoyment, in a grant of an estate in real property, is deemed to be: First, the price paid to the grantor, or, if the breach is partial only, such proportion of the price as the value of the property affected by the breach bore, at the time of the grant, to the value of the whole property second, interest thereon for the time during which the grantee derived no benefit from the property, not exceeding six years; and, third, any expenses properly incurred by the covenantee in defending his possession."

Upon breach of a covenant of warranty, it was error to allow and assess as damages the following items: The sum of $3,199.36 and interest thereon from September 1, 1908, amounting in the aggregate to $4,171.88 for improvements placed on the real estate after the plaintiff purchased the same from the defendant and before he was dispossessed; the sum of $600 paid by the plaintiff for insurance upon the property together with interest thereon; the sum of $165.48, together with interest thereon allowed for taxes paid by the plaintiff while in possession of the property; the sum of $350, allowed by the court as money necessarily paid out and expended in counsel's fees and other expense in defending his possession; the sum of $2,078, allowed as interest upon the price paid to the grantor for the time during which the grantee derived no benefit from the property.

Record examined, and held, not to contain sufficient evidence to support the findings of the trial court as to the amount of damages allowed as interest upon the price paid to the grantor for the time during which the grantee derived no benefit from the property and the expense properly incurred by the covenantee in defending his possession.

Error from Superior Court, Pottawatomie County; Geo. C. Abernathy Judge.

Action by J. A. Irick against J. W. Rubey. Judgment for plaintiff, and defendant brings error. Remanded, with directions.

B. B. Blakeney and J. H. Maxey, Jr., both of Muskogee, for plaintiff in error.

H. H. Smith and I. C. Saunders, both of Shawnee, for defendant in error.

KANE J.

This was an action for damages for the breach of a covenant of warranty, commenced by the defendant in error, plaintiff below, against the plaintiff in error, defendant below. Hereafter the parties will be designated "plaintiff" and "defendant," respectively, as they appeared in the trial court. Upon trial to the court there was judgment for the plaintiff in the sum of $11,837.49, to modify which this proceeding in error was commenced.

The errors assigned upon which counsel for defendant rely for a...