23 S.E.2d 575 | Ga. Ct. App. | 1942
Lead Opinion
In a suit to recover for an anticipatory breach by the defendant of a contract whereby the defendant agreed to give the plaintiff certain farm lands if the plaintiff would live in the house with and care for the defendant during the remainder of her life, the plaintiff is not limited to a quantum meruit recovery, but may rely on the contract and recover the entire value thereof.
The defendant demurred to the petition on the grounds, (1) that no cause of action is set forth; (2) the petition discloses on its face that the contract relied on was verbal, was not to be performed within twelve months, and was void under the statute of frauds; (3) the plaintiff fails to set forth any measure of damages which could be recovered. The judge sustained the demurrer and dismissed the action. The plaintiff excepted.
The defendant does not now contend that the petition was properly dismissed under the first and second grounds of her demurrer, which were the only grounds that were general. She insists that the petition did not set forth any "legal measure of damages," and that the court properly sustained the demurrer and dismissed the action. In a suit for damages for breach of contract the petition is not subject to a general demurrer on the ground that the wrong measure of damages is set forth. That is a defect that can be reached only by special demurrer. KochCompany v. Adair,
"An absolute refusal by one party to perform an executory contract containing mutual obligations, prior to the date or dates fixed for performance, if such repudiation goes to the whole contract, amounts to a tender of a breach of the contract; and if accepted as such by the opposite party to the contract, it constitutes an anticipatory breach, and the injured party may at his election at once sue and recover his entire damages."Phosphate Mining Co. v. Atlanta *675 Oil c. Co.,
While it has been held that where there has been a breach of a contract before it has been fully performed, the innocent party who has partly performed may keep the contract in life and perform his part and recover the entire value of his contract as if the breach continued to the date fixed for performance (Phosphate Mining Co. v. Atlanta Oil Co., supra), this does not mean that, in failing to go on and render all the services which he would have been required to render under the contract, he may recover all that the opposite party had agreed to give him under the contract. Where there has been an anticipatory breach of the contract the innocent party is not necessarily limited to a recovery of the mere value of the services he has performed. He may recover the entire present value to him of his contract. Since the time within which the contract was to be performed, by the giving to the innocent party, the plaintiff, by the defendant of her farm, was indefinite, *676 it would be necessary, before the plaintiff's damages could be recovered, to ascertain the expectancy in life of Mrs. King. This could be done by taking into consideration her age, health, etc., and by the use of the mortality tables. In determining the measure of damages this value could be established by taking into consideration the value of the property which the defendant had agreed to give the plaintiff at her death, the number of years which she might live, the benefits to the plaintiff arising from his use of the lands, less any abatement of such damages by the value of the services which the plaintiff did not render to the defendant. Stated differently: in determining this value the jury would be authorized to take into consideration the value of the land which the defendant agreed to give to the plaintiff at her death, the number of years which the defendant might live, the benefit to the plaintiff arising from the raising of crops on a portion of the lands, less any abatement of such damages by reason of any circumstances of which the plaintiff ought reasonably to avail himself.
The petition was subject to special demurrer in that the measure of damages alleged was the reasonable value of the defendant's farm which she agreed to give to the plaintiff upon her death. However, the judge erred in peremptorily dismissing the petition on such special demurrer. Leave is given to the plaintiff to amend and set out the correct measure of damages.
Judgment reversed, with direction. Sutton and Felton, JJ.,concur.
Addendum
We find nothing in the motion for rehearing, except a reargument of the case by counsel for the losing party. Counsel claim that this court has overlooked a great many decisions named in the motion. While this court in its opinion did not specifically cite and refer to every case cited in counsel's brief, and which counsel in the motion for rehearing assert that the court refused to follow, this court did specifically refer to Darnell v. Toney, and Phosphate MiningCo. v. Atlanta Oil c. Co., supra. This court relied on its own construction of the Phosphate Mining Co. case, and not on the construction which counsel put on it.
Rehearing denied. Sutton and Felton, JJ., concur. *677