271 F. 547 | D.C. Cir. | 1921
This appeal is from a judgment for damages for breach of contract.
It appears that appellee, Kern, hereafter referred to as plaintiff, in 1917 entered into a contract alleged to have been made with appellant company, defendant below, under which it agreed to build a house on the north part of lot 16, square 986, in the city of Washington, and convey the property thus improved to plaintiff for the sum of $4,-500. To accomplish this, William S. Phillips, of the defendant company, purchased lot 16 for $2,100 cash, it being understood that there would be room thereon for the erection of three houses, and plaintiff contracted to purchase the north house. The contract specified that the house was to be a duplicate of a sample house which had been previously erected at Eleventh and Oaks Streets, Northwest, in this city, with certain minor changes specified in the contract.
Trouble was encountered in perfecting the title to the lot, which necessitated delay. The parties, however, extended the contract to meet this contingency. When the title was completed, plaintiff went to the office of defendant company and asked Mr. Sager “what he intended to do about the house—whether he was going to build the, house or not?” To which Sager replied, “You don’t expect me to build a house to-day for $4,500, which would cost me $6,500 to build it ?” The house was not built, or the contract carried out. This action was brought to recover damages for its breach. From a judgment for plaintiff in the sum of $1,500, the case comes here on appeal.
The contract was in the usual form employed by agents in the sale of real estate in this District. It contained, among other conditions, a stipulation that “this contract is made subject to approval by owner.” It was signed:
“Phillips & Sager, Agents. By J. Arthur Lewis, Salesman. Accepted by John P. Kern, Purchaser. Address: 1125 D N. E.; 218 or 228 Tenn. Ave., N. E. Title to be in the name of John P. Kern; his wife, Hazel B., as joint tenants. Accepted by-, Owner.”
“I think a building of that type, comparing it with a building, a similar building, 1 erected at that time, at that approximate time, it would be worth about, I should say, §5,500.”
But, when questioned as to the examination he made of the sample house, he stated that he could not get inside of the house, but “simply went around it, and looked at it, and gave it a pretty good view.” ITe did not pretend to testify as to the character of materials used in its construction; the kind of heating plant, if it contained one at all; whether it was lighted by gas or electricity, or neither; the number of
“The measure of the recovery that Mr. Kern, the plaintiff, would be entitled to, in the way of damages, would be the difference between the contract price of this property, as specified in this written contract, and the cost of building that house at the time of the default, if you find that there was a default.”
The true measure of the damage was not the difference between the contract price and the cost of building the house, but the difference between the contract price and the market value of the portion of the lot purchased, with the house erected thereon, at the date of 'the default ; the date of default being the expiration of the period after the completion of the title within which the house could reasonably have been built, taking into consideration the building conditions generally prevailing in the District of Columbia at that time.
The judgment is reversed with costs, and the cause is remanded for a new trial.
Reversed and remanded.
Mr. Justice STANFORD, of the Supreme Court of the District of Columbia, sat in the place of Mr. Justice ROBB in the hearing and determination of this appeal.