175 Ky. 320 | Ky. Ct. App. | 1917
Opinion op the Court by
Granting petition for modification of opinion.
For original opinion, see 172 Ky. 65, 188 S. W. 894
In preparing our original opinion, we overlooked the fact that the defendant withdrew the plea that the contract, by which it agreed to reduce the land from which the earth and stone were taken to the level of the railroad grade and in condition for building purposes, was subsequently rescinded. That being true, no instruction covering this phase of the case should be given on another trial'.
In our original opinion we fixed as the measure of damages the reasonable cost of reducing the land from which the earth and stone were taken to the level of the railroad grade and in condition for building purposes. Upon a reconsideration of the question, we conclude that this measure of damages is incorrect. From plaintiffs avowal on the first trial it appears that it would cost at least $15,000.00 to do the work required by the contract, and from other testimony in the record it is by no means improbable that the cost would be far in excess of that sum. If this be true, the cost would far exceed the market value of the entire farm. If the contract had
In view of the foregoing conclusion, the court, on another trial, will give only the following instruction:
“You will find for plaintiffs, and award them such a sum in damages as you may believe from the evidence will fairly represent the difference between the market value of plaintiffs’ farm in its present condition and what its market value would have been if the land from which the earth and stone were removed had been reduced to the level of the railroad grade and left in condition for building purposes. ’ ’
In other respects we see no occasion to change our former opinion.
Wherefore, the petition for. modification of the former opinion is granted and the opinion modified as herein indicated.