139 Va. 178 | Va. | 1924
(after making the foregoing statement), •delivered the opinion of the court.
Under the rule applicable to a demurrer to the evidence, the jury might have found, and hence this court must hold, that the plaintiff was ready, able and willing to perform the contract on his part, and that the defendant was wholly in default.
The defendant was unable to perform his contract, and abandoned any effort to do so before the time fixed (January 20, 1921) for closing up the contract according to its terms, and so notified the plaintiff. Under these circumstances, no tender of a deed by the plaintiff to the defendant was necessary before bringing his action for damages for its breach. Hawley v. Mason, 9 Dana (Ky.) 32, 33 Am. Dec. 522; Kuhlman v. Wieben, 129 Iowa 188, 105 N. W. 445, 2 L. R. A. (N. S.) 666; Barnes v. Morrison, 97 Va. 372, 34 S. E. 93; 6 R. C. L. 948, sec. 328. Moreover, if tender was necessary, we .must hold, on the defendant’s demurrer to the evidence, that it was waived. There was abundant evidence to support a verdict of a jury so finding.
Counsel for the plaintiff in error have argued at length and cited many cases on the meaning of the word “assume” and what are not “speculative profits.” We do not deem it necessary to enter upon any discussion of these subjects. There were no collateral agreements on the part of Mitchell in his contract with Gafford, but only promises to pay money and to secure the deferred installments by a deed of trust on the property con
The record presents for our consideration two questions, the answers to which will settle the controversy. First, was there a completed and binding contract between the plaintiff and the defendant for the sale and purchase of the land, and, second, what was the measure of the plaintiff’s damages?
Of these in their order.
The defendant insists that there was no completed contract because no time was fixed for the payment of $2,500.00 of the purchase money. His position is that the purchase price was $15,000.00; that $1,000.00 was-paid in' cash, $5,500.00 was to be paid on January 20, 1921, that a farm loan of $3,000.00 was to be assumed, and that $3,000.00 was to be paid in equal installments, of one, two and three years, thus leaving $2,500.00 for which no time of payment was fixed.
Counsel for the defendant rely upon Edichal Bullion Co. v. Columbia Gold Mining Co., 87 Va. 641, 13 S. E. 100; Berry v. Wortham, 96 Va. 87, 30 S. E. 443, and 1 Elliott on Contracts, section 170, in support of the-' proposition that the time and terms of payment of the purchase money are essential elements of a contract for’ the sale and purchase of real estate, and that a failure to^ agree upon them renders the contract void and unenforceable by a bill in equity or an action for damages. This proposition is not denied where such time and terms are left open for future negotiation and settlement, but they are not thus left open where the intention of the parties can be gathered from language used, in the contract to which the law attaches a fixed and. definite meaning.
In Young v. Ellis, 91 Va. 297, 301, 21 S. E. 480, it is said: “An agreement to pay money, no time being specified, is held to be an agreement to pay the same on demand * * while an agreement to do something other than to pay money, no time being expressed, means a, promise to do it in a reasonable time,” and such we understand to be the law of this State.
In Dunlop v. Baker (C. C. A., 4th Circuit), 239 Fed. 193, 152 C. C. A. 181, there was a contract for an option on real estate, as follows: “For and in consideration of one dollar, to me in hand paid, the receipt of which is hereby acknowledged, and other good and sufficient considerations, I hereby agree to give J. J. Dunlop, or assigns, the exclusive right to purchase the 418 acres of land owned by Robert E. Baker, situated in Prince George county, State of Virginia, with the appurtenances thereunto belonging for the sum of $12,000.00 from the 9th day of April, 1915, to the 9th day of July, 1915, upon the following terms: $200.00 on signing the •contract, and trust for balance of equity on the delivery of good and sufficient warranty deed, and the balance as follows: Purchaser to assume existing trust on property.” When the option was given there were deeds of trust on the land amounting to $8,000.00 and $200.00 was tó be paid “on signing the contract.” Deducting these sums from the option price of $12,000.00 left $3,800.00, for which it was claimed that no time of pay
“The defense of indefiniteness and uncertainty is equally unfounded. The option clearly meant that upon its acceptance and the execution of the contract of sale, the purchaser was to pay $200.00 in cash, assume the payment of the debts secured by the trust deeds covering the property, and execute for the benefit of the seller a trust deed as security for the difference between the purchase price, $12,000.00, and the aggregate of the cash payment and the liens assumed by the purchaser. This construction of the contract was assented to by the bankrupt in his answer to the original petition.
“The only item not definitely fixed was the time for the payment of the balance going to the seller. But it is settled by authority from which there is no dissent that expression of the time of payment is not essential to the validity of a contract of sale. If no time be mentioned, it is to be inferred that either immediate payment or payment in a reasonable time according to circumstances is intended. 36 Cyc. 597, and authorities-cited.”
The mere fact that the time of payment of a sum of money is not mentioned in a contract, otherwise complete, does not render the contract void, but the omission may be supplied by legal intendment and the contract thereby rendered complete in that respect. Such is the rule applicable to a promise to pay money, where the time of payment is not expressed in the contract, and cannot be ascertained from the language of the contract.
In. 1 Greenleaf Ev., section 277, it is said: “Where the language of the instrument has a settled legal construction, parol evidence is not admissible to contradict, that construction. Thus, where no time is expressly
The contract, however, is to be read as a whole, and, if so reading it, a different time of payment is disclosed, effect will be given to the intention of the parties.
In the instant case, a fair construction of the contract between the plaintiff and the defendant made the $2,500.00 due and payable on January 20, 1921, when the transaction was to be closed by the execution of a deed and a deed of trust to secure the deferred payments. Under the contract between Gafford and McDaniel, in addition to the $3,000.00 due to the Federal Reserve Bank, which McDaniel was to assume, he was to make a cash payment of $1,500.00 and to give his notes for $3,000.00 at one, two and three years, equal installments, which were denominated as deferred installments, but there was also an intermediate payment of $5,500.00 to be made on January 20, 1921, when the transaction was to be closed, which was not to be a deferred installment. Daves bought of McDaniel at $15,000.00, “payable as follows: One thousand and 00-100 cash and assume the contract of sale G. W. McDaniel made with Terry Gafford, the credit payments to be evidenced by negotiable notes, with interest at six per cent payable annually and to be secured by a deed of trust on said property.” Under the Gafford contract there were to be no “credit payments,” no “deferred installments” except the three notes for $1,000.00 each, and the payment of these Daves agreed to assume. He also assumed the payment of $5,500.00 due by McDaniel January 20, 1921, and the $3,000.00 due to the Federal Reserve Bank. He agreed to pay $15,000.00 for the property, of which sum he paid $1,000.00 in
The law is loath to declare contracts void for uncertainty, and leans against a construction which has that tendency. While courts cannot make contracts for parties, neither are they willing to release them from obligations which they have assumed if they can be-ascertained with reasonable certainty from the language used, in the light of surrounding circumstances. Turner v. Hall, 128 Va. 247, 104 S. E. 861.
Courts of equity sometimes refuse to exercise their discretionary jurisdiction of specific performance under circumstances which would not bar an action at law for damages. The same degree of certainty is not required in an action to recover damages for a breach of contract as in a suit in equity for specific performance.
In Edichal Bullion Co. v. Columbia Gold M. Co., supra, it is said: “The contract, which is sought to be specifi
In Manss-Owens Co. v. H. S. Owens & Son, 129 Va. 183, 105 S. E. 543, it is said: “Where a party seeks specific performance of a contract, the terms of the contract must be certain in all particulars essential to its enforcement; but, if the relief sought is the recovery of damages, it may be sufficient if there is certainty only as to the general scope and stipulations of the contract.”
In Pomeroy on Contracts (2d ed.), section 159, it is said: “A greater amount or degree of certainty is required in the terms of an agreement, which is to be specifically executed in equity, than is necessary in a contract which is to be the basis of an action at law for damages. An action at law is founded upon the mere nonperformance by the defendant; and this negative conclusion can often be established without determining all the terms of the agreement with exactness. The suit in equity is wholly an.affirmative proceeding. The mere fact of nonperformance is not enough; its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced.”
In 6 R. C. L. page 644, section 59, the law is stated as follows: “It is evident that courts can neither specifi.cally enforce contracts nor award substantial damages for their breach when they are wanting in certainty. Damages cannot be measured for the breach of an obligation when the nature and extent of the obligation is
Coming now to the measure of damages. This was not a suit in equity for the specific performance of the contract, nor an action at law on the contract to recover the purchase money, but an action at law to recover damages for a breach of the contract. Hence the Virginia doctrine, announced in Turner v. Hall, 128 Va. 247, 104 S. E. 861, relied on by both sides, is not applicable. In that case, the action was on the contract to recover the purchase money, and recovery was allowed
The question of the measure of damages for the breach of a contract for the purchase of real estate by the vendee has generally arisen between a vendor in possession of the land and a purchaser from him. The rule generally prevailing is that the measure of damages for a purchaser’s refusal to perform a contract for the purchase of real estate is ordinarily the difference between the contract price and the market value at the time of the breach, with interest from the date of the breach, where the title remains in the vendor and the money in the purchaser. First M. E. Church v. North, 92 Kansas 381, 140 Pac. 888; Harmon v. Thompson, 119 Ky. 528, 84 S. W. 569; Wilson v. Hoy, 120 Minn. 451, 139 N. W. 817; Smith v. Lander (Tex. Civ. App.), 89 S. W. 19; Old Colony R. Corp. v. Evans, 72 Mass. (6 Gray) 25, 66 Am Dec. 394.
In the instant case, however, the vendor never had possession, and what McDaniel did, in effect, was to sell to Daves his bargain with Gafford at a profit of 82,000.00. This profit was what the parties contemplated would be the measure of the loss in case of default by Daves.
In Roper v. Milbourn, 93 Neb. 809, 142 N. W. 792, Ann. Cas. 1914-B, 1225, it was held that on a breach by
In Scheer v. Achlomowitz (N. Y. Sup.), 88 N. Y. Supp. 170, it was held that in an action for breach of a contract by which the plaintiff agreed to sell certain premises to the defendant, the defendant having, before the day for the delivery of the deed, bought of the owners, thus preventing plaintiff from buying of them, the plaintiff must, to prove damages, show the price at which he could have bought of the owners; the difference between that and what the defendant agreed to pay being the measure of damages.
In Booth v. Milliken, 127 App. Div. 522, 111 N. Y. Supp. 795, affirmed in 194 N. Y. 553, 87 N. E. 1115, the vendor who sued for damages for breach by the vendee did not own the land at the time he made the sale. In speaking of the proper measure of damages, the court said: “The (trial) court adopted and applied the wrong measure of damages in permitting plaintiff to prove the market value of the land and in basing the damages on the difference between the market value and the contract price. This is the proper and usual rule where the vendor actually owns the land, but it is wholly inapplicable where he has to purchase it himself in order to fulfill his contract.. In such case, his loss cannot exceed the difference between what it would cost him to acquire the land and what the defendant promised to pay. It may be that, if his contract with the owner was at a price far below the market price, he could not recover the whole difference, but he certainly
So, in the instant ease, the measure of the damages sustained by the plaintiff was the difference between the price he had agreed to pay for the land and the price at which he sold to Daves. This was manifestly what the parties had in mind at the time the contract was entered into, and gives to the plaintiff all he could have gotten if Daves had not made default. This was all the plaintiff was entitled to recover. Daves was not responsible for the $500.00 paid by McDaniel to Gafford for a release of his contract with him.
In Williston on Contracts, section 1338, it is said: “For the injury caused by the nonperformance of most contracts the primary, if not the only, remedy of the injured party is an action for damages for the breach. In fixing the amount of .these damages, the general purpose of the law is, and should be, to give compensation — that is, to put the plaintiff in as good position as he would have been in had the defendant kept his contract.”
Daves had already paid to McDaniel $1,000.00 of the
We find no error in the judgment of the trial court.
Affirmed.