112 Ky. 212 | Ky. Ct. App. | 1901
Lead Opinion
Opinion of the court by
Reversing.
On February 12, 1891, by a written contract betw'een appellants and-tbe appellees, the executors of Eliza R. Cocke, it was recited that appellants “hereby agree to purchase from said Cocke’s executors the following real estate, lo
On the former appeal this court held, Allison v. Cocke’s Ex’rs, 106 Ky., 768 (21 Ky. Law Rep., 441) (51 S. W., 593), that the contracts were contracts for the sale of land, and not contracts by which, for a money consideration, options were granted at a fixed price. It was held, also, that both the provisions for a forfeiture and the provision that the contracts should be void for nonpayment of the remainder of the
• When the opinion and mandate of this court were filed, if no new issue had been presented, the duty of the,chancellor was plain and simple. There was but one thing to be done. That was, to decree relief against the forfeiture provided in the contract, and give judgment for the sums forfeited, in accordance with the mandate. The litigation over that question was at an end. It was established that the vendees were entitled to recover the sums paid by them, but that the vendors might, if they desired, show what' damages they have suffered by the breach, and deduct the amount.thereof from the amount the vendees were entitled to recover. The vendors, by their answers and counterclaims, set up the damages they claimed. For all practical purposes, the cases then stood in the position of actions for damages. There can be no question that the consideration of an issue as to the amount of damages suffered is one peculiarly within the province of a jury. That was the only issue in the case, the question of relief against the forfeiture having been definitely determined. So, when the vendors moved to transfer the cases to the ordinary side of the docket, their motion should have been sustained. The cases should have been so transferred, and the amount of damages should have been ascertained by a jury, under proper instructions. But, as the vendees objected to the transfer, they can not be he.ard to complain that the motion was overruled, for they are in the position of consenting that the issue should be tried by the court in equity. The vendors then moved for an issue out of chancery upon the question of damages. This also was objected to by the vendees. The court did not grant the motion as made, but granted ah issue out of chancery
When the verdict was properly set aside, the chancellor, so far as the Anndees were concerned, had the right to proceed to determine the issue presented by the counterclaims. If he determined the issue upon correct legal principles and upon the competent testimony, the vendors might com
We think we have sufficiently indicated the general lines which we think proper as to the admissibility of testimony in such cases, and that they are abundantly sustained by authority. In the case of Boom Co. v. Patter
We come now to the consideration of the measure of damages. The vendors were entitled, first, to the difference, if any, between the value fixed by the contract and the fair market value, ascertained on the lines we have
Whole court sitting.
Rehearing
to a petition for rehearing and modification of the opinion.
Appellants’ counsel, by petition for rehearing, has presented with great force the proposition that appellees, having an election of remedies for the breach of their contract, can not take more than one; or, as he puts it, “declare the contract void, and at the same time seek a recovery which could only be ba,sed on the contract.” His argument is based upon the theory .that the vendors have declared -the contract void, and have sought to hold the forfeited money; that this must be done subject to the vendees’ right to sue in equity for relief against the penalty and that the vendors have the right to ask the court to require the vendees, who come into court seeking equity, to do equity. Of course, when counsel speaks of declaring the contract void, and at an end, he refers only' to that part of the contract which requires the vendors to convey their land and the vendees to pay for it, for the contract does not provide that it shall be entirely void by reason of the breach, but expressly excepts the payment of the two sums aggregating $20,500. So the declaration of forfeiture and the attempt to retain the forfeited money is an attempt to enforce the literal terms of the contract. The vendor’s claim is upon the contract, and the vendees have sued for equitable relief against enforcement of this provision of the contract. The relief is granted them upon equitable terms, which are that the vendors shall not be
Appellants’ case is an application by them to be relieved from a forfeiture. It rests upon the ground that appellee should not, in justice and right, be permitted to retain appellants’ money for nothing. The relief which equity will afford them must be governed by equitable principles. In so far as appellees have paid out the money received from appellants in reasonable expenses fairly -incurred in making or attempting to carry out the contract, they should not be liable; for this money is! not in their hands,- and the principles on which appellants'’ action is grounded apply only to money in the hands of appellees which, in equity, they should not be permitted to retain. And in determining how much, if any, of. the sum paid by appellants to appellees may be retained, equity will not consider alone the disbursements made by appellees, buff will take into consideration also the rights of appellees, and the situation in which they are left. If, at the. termination of the contract, the property, valued at its reasonable
The petition is overruled.