31 Wash. 610 | Wash. | 1903
The opinion of the court was delivered by
— This case arises out of a conveyance made by respondent to appellant on August 13, 1890, for a tract of laud in Ballard, King county, consisting of a narrow strip of upland and a large piece of tide land; the proportions being substantially one-fifteenth upland and fourteen-fifteenths tide land. The contract of sale was made Kovember 13, 1889, and recites that the respondent agrees
The case presents the single question of what is the measure of plaintiff’s recovery. The court adopted the theory that the measure of damages was the amount paid the state to acquire its title, with interest from the date of payment ; and it is insisted by the appellant that this was the correct rule, and that the court therefore erred in granting a new trial. Passing by the first proposition discussed by the respondent, viz., that, where a trial court sets aside a verdict and grants a new trial generally, the order granting a new trial will not be reversed unless the tidal court has abused its discretion, we think it advisable to determine in this cause the proper measure of damages, to prevent the necessity of another appeal on that question. It is insisted by the appellant that this question has been passed upon by this court in Cade v. Brown, 1 Wash. 401 (25 Pac. 457), where the measure of damages in an action for breach of a contract was held to be the value of the land at the time of the breach, less the price plaintiff was to pay therefor, together with any special damages the plaintiff might prove in purchasing lumber to erect the buildings on the premises. But it will be observed that in that case the grantor had been guilty of fraud, and purposely disabled himself from complying with his contract by subsequently conveying the land to another after the value of the land had increased; thereby fraudulently attempting to deprive the purchaser of the fruits of his contract. However, that case is not in point here, where the failure of title to a part of the land is not through any fault of the grantor. That this court did not attempt to adopt the rule that the measure of damages is the value of the land at the time of the breach is plainly shown by the
“If such a rule were adopted in this western country, where what is cheap agricultural or farming land one year is valuable city property the next, and where the laws, by reason of the formative condition of the state, are unsettled and unadjudicated, a conveyance of land would be a perilous transaction which a prudent man might well hesitate to engage in.”
There are some cases, notably from the Hew England states, which hold to the rule contended for by appellant. Mr. Rawle in his work on Covenants (5th ed.), § 164, after noticing the cases holding to this rule, observes, “the cases which support the opposite rule are much more numerous,” and states that “the rule that the measure of damages on the covenants for quiet enjoyment and of warranty is limited by the consideration money and interest may be said to be now settled law in the states of Hew Hampshire, Hew York, Hew Jersey, Pennsylvania, Virginia, Ohio, Horth Carolina, South Carolina, Georgia, Kentucky, Indiana, Tennessee, Arkansas, Missouri, Iowa, Wisconsin, Maryland, Hevada,Hebraska, Montana, Texas,
As to the contention of the appellant that, under the' terms of its contract, it constructed a mill on the land, we think this was properly disposed of by the court on the ground that the contract had become merged in the deed. It was for the jury to say, under all the circumstances of the case, whether the appellant had actually incurred any' damages,. considering the whole transaction, and, if' so, what those damages were, limited by the rule which wé have announced, that the measure of damages would be the amount paid for tire land obtained by the state, not exceeding the amount of the original purchase price, and further limited hy the relative values of the land to which
Eullerton, C. J., and Mount, and Anders, JJ., concur.