Sloan v. Baird

• Decision Date: 27 March 1900
• Parties: SLOAN v. BAIRD.
• Court: New York Court of Appeals Court of Appeals

162 N.Y. 327

56 N.E. 752

SLOAN

v.BAIRD.

Court of Appeals of New York.

March 27, 1900.

Appeal from supreme court, appellate division, First department.

Action by Charles W. Sloan against Anna W. Baird. From a judgment of the appellate division (42 N. Y. Supp. 38) modifying and affirming a judgment in favor of plaintiff entered on a referee's report, both plaintiff and defendant appeal. Affirmed.

Julien T. Davies, for plaintiff.

Albert H. Atterbury, for defendant.

HAIGHT, J.

The defendant was the owner of certain lands, buildings, and machinery at Trenton, N. J., known as the plant of the Hamilton Rubber Company. She entered into a certain contract with the plaintiff by which she agreed to sell and convey the property to him within a time specified for the sum of $50,000. At the time specified the plaintiff tendered performance, but the defendant refused to convey the property to him, but, instead, conveyed it to one Skrim. This action was brought to recover the damages which the plaintiff sustained by reason of the defendant's refusal to perform her contract. The case was tried before a referee, who awarded the plaintiff $15,500 damages, with interest thereon from the date of the breach of the agreement. The appellate division modified the judgment by deducting from the damages awarded by the referee the sum of $2,853.54, and also by deducting the sum of $142.68 from the amount awarded as extra allowance in addition to costs, and, as so modified, the judgment was unanimously affirmed. We have examined the exceptions raised by the defendant's appeal, and are of the opinion that the questions involved were properly disposed of by the appellate division. The only question which we shall here discuss arises upon the plaintiff's appeal, in which he claims that the appellate division improperly modified the judgment by deducting from the sum awarded the interest from the time of the breach of the contract. It is true that much has been written upon the subject of awarding interest, and that the authorities are not in entire harmony. But we must regard the question here under consideration as settled by our recent decision in the case of Gray v. Railroad Co., 157 N. Y. 483, 52 N. E. 555. In that case the rule adopted by Earl, J., in White v. Miller, 78 N. Y. 393, and by Bradley, J., in Mansfield v. Railroad Co., 114 N. Y. 331, 21 N. E. 735, 1037,4 L. R. A. 566, was approved and followed. The rule, as stated in these cases, is to the effect that in an action to recover unliquidated damages for a breach of a contract interest is not allowable unless there is an established market value of the property, or means accessible to the party sought to be charged of ascertaining, by computation or otherwise, the amount to which the plaintiff is entitled. See, also, McMaster v. State, 108 N. Y. 542, 15 N. E. 417. The damages in this case were the difference between the amount which the plaintiff agreed to pay and the value of the property. The property consisted of a parcel of land upon which there were buildings inclosing a quantity of machinery used in the manufacture of rubber. The factory had been operated for a number of years, but at the time of the contract it stood idle and unused. The property was of a special kind, fitted for a peculiar business, and its value depended largely upon its location, condition, and the demand for the goods which it was designed to manufacture. It appears that the machinery constituted the chief value of the property, and its long use of necessity produced a deterioration, and impaired its value. The expert witnesses called upon the question of the value of the property widely differed in their judgments. With reference to the machinery their estimates ranged from $5,000 to $48,000, and upon the whole property from $35,000 to $100,000. It is thus apparent that the damages sought to be recovered were not only unliquidated, but that no means were accessible to the defendant of ascertaining the amount which might be awarded by a jury and she called upon to pay. But it is said there was a market value. If so, what was it? Was it $35,000 or $100,000? The market value of property is established when other property of the same kind has been the subject of purchase or sale to so great an extent and in so many instances that the value becomes fixed. Bouvier, in his Law Dictionary, defines ‘market value’ as a price established by public sales, or sales in the way of ordinary business; as of merchandise. The Century Dictionary defines ‘market price’ as being the current price. See, also, Murray v. Stanton, 99 Mass. 345, 348. While evidence was given by experts showing the value of the property, there is no evidence showing that this property had a market value established and fixed by which the defendant could determine the damages which the plaintiff was entitled to recover, or compute the interest thereon, and there is no finding by the referee that the property had a market value. The judgment should be affirmed, without costs to either party.

O'BRIEN, J.

The judgment in this case was entered upon the report of a referee, and awarded to the plaintiff damages for a breach by the defendant of an executory contract in writing, whereby the defendant agreed to sell and convey to the plaintiff certain real estate at a specified price. The complaint alleges the due execution and delivery of the contract, the breach thereof by the defendant in refusing to convey upon tender of the purchase price, the sale by her to another party before the action was commenced, and the damages. The only fact alleged upon which the defendant, in her answer, took issue, was the amount of the damages, and that was the only question which the referee was required to determine. He found that the property which the defendant had agreed to sell to the plaintiff for $35,000, subject to a mortgage of $15,000, was worth at the date of the breach of the contract at least $65,500, and that the damages amounted to $15,500, with interest thereon from the date of the tender by the plaintiff of the purchase price. The appellate division, in affirming the judgment as to the damages, held that the item of interest, amounting to $2,853.54, was improperly allowed, and modified the judgment by striking it out of the recovery. Both parties have appealed to this court; the defendant from the whole judgment, and the plaintiff from that part of it which decides that interest was not allowable.

The defendant's appeal, therefore, rests upon the exceptions taken at the trial, and the plaintiff's appeal upon the question of interest upon the damages from the date of the breach. The defendant, having deprived the court of the power to decree specific performance of the contract, was bound to respond to the plaintiff in such damages as were found to have been sustained by him in consequence of the breach resulting from the tender of performance and the refusal of the defendant to convey. Cooley v. Lobdell, 153 N. Y. 596, 47 N. E. 783. The circumstance that the real property constituting the subject-matter of the contract was situated in another state presented no obstacle to the jurisdiction. Newton v. Bronson, 13 N. Y. 587;Gardner v. Ogden, 22 N. Y. 327;Sutphen v. Fowler, 9 Paige, 280;Ward v. Arredondo, Hopk. Ch. 213. Tender of the purchase price is generally regarded as equivalent to payment, and until conveyance made the vendor holds the title as trustee for the vendee. Pelton v. Insurance Co., 77 N. Y. 605;Hathaway v. Payne, 34 N. Y. 92;Coggswell v. Coggswell, 2 Edw. Ch. 328. Upon tender of performance by the plaintiff, and refusal of the defendant to convey, the damages for the breach of the contract is the difference between the contract price and the market value of the property at the time of the breach, and the vendee becomes then entitled to the rents and profits. Worrall v. Munn, 38 N. Y. 137;Bostwick v. Beach, 103 N. Y. 414, 9 N. E. 41; Id., 105 N. Y. 661, 12 N. E. 32;Margraf v. Muir, 57 N. Y. 155;Pumpelly v. Phelps, 40 N. Y. 66.

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