50 Wash. 83 | Wash. | 1908
The plaintiff entered into a written confract with the defendant to purchase of the latter two lots in Hillman’s Meadow Gardens addition to the city of Seattle. 'The agreed price was $250. The plaintiff paid $25 in cash when the contract was executed, and the remainder was to be paid in deferred payments of $5 per month. After several payments were made, the defendant sold and conveyed the land to an innocent third person. Payments were also received by defendant from plaintiff after the conveyance to the third party. Upon discovering that the lots had been deeded fo another, the plaintiff brought this suit for damages. She
It is assigned that it was error to deny the motion for new trial, and it is argued that the evidence is insufficient to justify the amount of the verdict. The testimony conflicts as to the increased value of the property, but there is evidence in the record of a sufficient increase to sustain the amount of the verdict. The value at the time of the breach was placed as high as $500. It is true appellant’s witnesses placed a much lower valuation upon the property, but it was the province of the jury to pass upon the credibility of the witnesses and the weight of the testimony. It was therefore not error for the trial court to refuse to set aside the verdict merely upon the ground of insufficient testimony.
It is, however, contended that the court erred in giving the following instruction upon the measure of damages:
“If you find for the plaintiff on the other issues in the case,, it will be necessary for you to assess the damages, and the damages are just what in law will legally compensate her for breach of the contract by the defendant. The measure of damage is the difference between the amount agreed to be paid by the plaintiff and the market value of the property at the time of the breach of contract by the defendant less the unpaid purchase amount due on the purchase price; and if you find for the plaintiff, it may be necessary for you to determine whether or not, at the time of the breach of this contract, at the time Mrs. Herbert ascertained that Mr. Hillman could not perform the contract, • what the max’ket value was at that time, and if it was greater than the amount which Mrs. Herbert agx’eed to pay for the land, just that difference less the unpaid portion of the purchase price would constitute the damages.”
We think the measure of damages stated in the instruction' is erroneous. We believe that the proper amount for re
The judgment is therefore reversed, and the cause remanded with instructions to grant a new trial.
Rudkin, Fullerton, and Crow, JJ., concur.
Mount and Root, JJ., took no part.