94 F. 703 | U.S. Circuit Court for the District of Southern New York | 1899
This case was argued at final bearing upon the following stipidation:
“That a decree directing specific performance, as prayed in the complaint, be entered herein, and that if, in the opinion of the court, after the examination of the record herein, the complainant shall be entitled to any costs, damages, or compensation herein, by reason of any acts of defendant, such costs, damages, or compensation may be assessed by the court upon the testimony, properly admissible, now before the court, without prejudice to the right of either party to appeal.”
The sole question, then, is as to the amount of damages, if any, to which the complainant is entitled. On April 27, 1896, the defendant agreed to sell his house to complainant for ¡¡¡>1.1,000, — $200 cash on execution of contract, and $10,800 on delivery of deed.
Complainant claims that she is entitled to recover as damages— First, the amount of depreciation in or waste to the property during the time that she has been kept out of possession by the defendant; second, the loss sustained by her inability to carry out said contract of sale to Todd for $13,500; and, third, the value of the use and occupation of the premises from the date of the contract, and that defendant should not be allowed interest on the purchase money.
The defendant is not liable for damages for the failure of the sale to Todd. The evidence as to such alleged sale is uncertain and insufficient. The contract is not offered in evidence, and it does not definitely appear what the written agreement was which is said to have been lost, nor why no copy thereof was produced by complainant. But, irrespective of this question, the damages for the failure to resell were remote or speculative in character, and were not such as would naturally have resulted from said breach. In such cases the rule is well settled that only the natural and ordinary damages can be recovered, and that special damages resulting from a failure to make a resale can only be recovered where the contract for resale was brought to the knowledge of the defendant, and where, by reason of his special knowledge of the circumstances, he impliedly undertakes, in case of his failure to make the conveyance, to pay such special damages by way of indemnity. Wallace v. Ah Sam, 71 Cal. 197, 12 Pac. 46; Hadley v. Baxendale, 26 Eng. Law & Eq. 398; Hobbs v. Railway Co., L. R. 10 Q. B. 111; Masterton v. Mayor, etc., of City of Brooklyn, 7 Hill, 61; Howard v. Manufacturing Co., 139 U. S. 199, 11 Sup. Ct. 500; Telegraph Co. v. Hall, 124 U. S. 444, 8 Sup. Ct. 577; Boyd v. Fitt, 14 Ir. C. L. 43; Griffin v. Colver, 16 N. Y. 494; Hamilton v. McPherson, 28 N. Y. 72.
It appears from the evidence that the premises have been without a tenant since the date of the original contract, and that the depreciation therein is largely due to this fact, and there is no evidence that the defendant has made any effort to rent these premises. The vendee may elect to pay the interest on the purchase money during the time he has been wrongfully deprived of possession, and take the rents and profits received by the vendor, or he may allow the vendor to retain the rents and profits, in which case he will be exempted from the payment of interest. Worrall v. Munn, 53 N. Y. 185. In
Complainant’s testimony is to the effect that the depreciation in value is directly due to defendant’s negligence. While the failure of defendant to introduce testimony upon any of these questions makes it difficult for the court to- exactly estimate the damages, yet, in view of all the evidence and of the statement of counsel that they desire to simplify the questions so as to obtain an equitable disposition of the matter by the court, I think a decree should be entered directing a specific performance of said contract, and that from the sum of §10,800, agreed to be paid by tbe complainant, there should be deducted the interest on the §200 originally paid, and the sum of 81,000 for the deterioration in the value of the property, and complainant’s costs.