West Coast Mfg. & Inv. Co. v. West Coast Imp. Co.

• Decision Date: 24 April 1903
• Court: Washington Supreme Court
• Parties: WEST COAST MFG. & INV. CO. v. WEST COAST IMP. CO.

72 P. 455

31 Wash. 610

WEST COAST MFG. & INV. CO. v. WEST COAST IMP. CO.

Supreme Court of Washington

April 24, 1903

Appeal from Superior Court, King County; W. R. Bell, Judge.

Action by the West Coast Manufacturing & Investment Company against the West Coast Improvement Company. From an order setting aside a verdict for plaintiff and granting a new trial plaintiff appeals. Affirmed.

James Kiefer, for appellant.

Piles Donworth & Howe, for respondent.

DUNBAR J.

This case arises out of a conveyance made by respondent to appellant on August 13, 1890, for a tract of land in Ballard King county, consisting of a narrow strip of upland and a large piece of tide land; the proportions being substantially one-fifteenth upland and fourteen-fifteenths tide land. The contract of sale was made November 13, 1889, and recites that the respondent agrees to convey to the appellant the tract described in the deed, for the consideration of $750 in money, upon condition that the appellant commence work on or before December 1, 1889, and on or before April 1, 1890, have in operation a mill upon the tract in question. In 1894 the tide land described in the deed was platted and appraised by the state of Washington and offered for sale, and on June 26, 1895, the appellant purchased from the state of Washington the said tide land at a cost of $1,522.72, the appraised value. The purchase of this tide land at the price above indicated is alleged in the complaint. The consideration mentioned in the deed is the sum of $750. A demurrer was interposed to the complaint, which was sustained, and the action dismissed on the ground that the complaint did not state facts sufficient to constitute a cause of action. From a judgment of dismissal, plaintiff appealed, and the judgment of the superior court was reversed. 25 Wash. 627, 66 P. 97. In reversing the case this court held that the assertion by the state of a paramount title constituted a breach of the covenant of warranty under the circumstances shown by the complaint, but did not pass on the question of the measure of damages. After the return of the cause to the superior court, the defendant answered, plaintiff replied, and the cause was tried before a jury. The trial court ruled out most of the testimony offered by the defendant, and instructed the jury to return a verdict for the amount claimed in the complaint, with interest, without leaving the jury box. The jury thereupon returned a verdict in accordance with the instructions of the court for $2,131.50. Defendant duly moved that the verdict be set aside and a new trial granted. The court, after consideration, made an order setting the verdict aside and granting a new trial; and from this order plaintiff has appealed, alleging that the court erred in granting the new trial.

The case presents the single question of what is the measure of plaintiff's recovery. The court adopted the theory that the measure of damages was the amount paid the state to acquire its title, with interest from the date of payment and it is insisted by the appellant that this was the correct rule, and that the court therefore erred in granting a new trial. Passing by the first proposition discussed by the respondent, viz., that, where a trial court sets aside a verdict and grants a new trial generally, the order granting a new trial will not be reversed unless the trial court has abused its discretion, we think it advisable to determine in this cause the proper measure of damages, to prevent the necessity of another appeal on that question. It is insisted by the appellant that this question has been passed upon by this court in Cade v. Brown, 1 Wash. St. 401, 25 P. 457, where the measure of damages in an action for breach of a contract was held to be the value of the land at the time of the breach, less the price plaintiff was to pay therefor, together with any special damages the plaintiff might prove in purchasing lumber to erect the buildings on the premises. But it will be observed that in that case the grantor had been guilty of fraud, and purposely disabled himself from complying with his contract by subsequently conveying the land to another after the value of the land had increased; thereby fraudulently attempting to deprive the purchaser of the fruits of his contract. However, that case is not in point here, where the failure of title to a part of the land is not through any fault of the grantor. That this court did not attempt to adopt the rule that the measure of damages is the value of the land at the time of the breach is plainly shown by the decision in Morgan v. Bell, 3 Wash. St. 554, 28 P. 925, 16 L. R. A. 614, where it was held that the measure of damages for the breach of a contract for the conveyance of land which the party contracting to convey did not...