Damages, In contract, Assessment by trial judge. Practice, Civil, Findings of trial judge.
In an action to recover damages for the alleged breach of an agreement in writing for the exchange of real estate, whereby, among other things, the defendant agreed to sell and the plaintiff, who was described as the party of the second part, agreed to buy "the new three family apartment house . . . shown to the party of the second part all completely finished and all rented, 34-36-34 dollars per month," it appeared that in making the exchange under the contract this property at the request of the plaintiff was conveyed by the defendant to a third person, and that later, when the plaintiff sold the property, it was conveyed by this third person to the purchaser. It further appeared that when the property was conveyed by the defendant two of the three apartments in the house were vacant, that one of these apartments the plaintiff never was able to let, up to the time he sold the property about four months after its purchase, and that the other vacant apartment remained unlet for three months, after which by incurring expense in employing a broker the plaintiff succeeded in letting it. Held, that the measure of damages was the difference between the value of the property in the condition in which it was represented by the contract to be and its value in its actual condition at the time of the delivery of the deeds under the contract, and that the fact that the deed of this property was made to another person at the plaintiff's request instead of to the plaintiff was immaterial; that the plaintiff was entitled to recover substantial damages, and that, upon the question of the value of the house when partly occupied as compared with its value when wholly occupied, all reasonable probabilities as to the length of the period which would elapse before the house would be wholly occupied and the probable loss of rents during that period properly might be considered. Held, also, that evidence as to the difficulty of procuring tenants and as to the loss incurred by the plaintiff in failing to procure them under the circumstances of the case might furnish the best standard for measuring the difference in value between the property as it was agreed by the defendant that it should be and as it actually was, and therefore properly might be considered.
Where a judge, before whom an action of contract is tried without a jury, finds for the plaintiff and assesses the damages in a certain sum without stating the rule which he adopted as to the measure of damages, it will be assumed that he proceeded upon the true rule.
HAMMOND, J.
The rule of damage was the excess of the value of the Harvard Street estate as it was represented to be over its value as it actually was, and to this excess the plaintiff was entitled immediately upon the delivery of the deeds passed under the agreement, irrespective of the question whether the deed was made to him or to some one at his request. Morse v. Hutchins, 102 Mass. 439, and cases there cited. The defendant could not relieve himself from the consequences of this rule by showing that the plaintiff had conveyed the property to some one else. Moreover the trial judge might have found upon the evidence that although the record title passed to Murray he held the property for the benefit of the plaintiff.
Upon the evidence it could not have been ruled as matter of law that applying the rule above stated the damage was merely nominal. A house filled with tenants may be an entirely different thing in value from a house only one third filled, and that may be so even if the tenants are simply tenants at will. A purchaser may be willing to take his chances as to whether tenants in a house already filled may leave, and not be willing to do so as to getting tenants for the unoccupied parts of a house only partly filled. The second, third, fourth, sixth and seventh requests were therefore properly refused.
The first and fifth requests present more difficulty. We understand the fifth request to be in substance that in estimating the damages no weight can be given to the loss of rent. As thus understood it could not have been given. Upon the question whether a house partly occupied is worth as much as a house wholly occupied, all reasonable probabilities as to the time when the house may be wholly occupied and the probable loss of rents during that time may be properly considered. The request was properly refused.
The first request was that the plaintiff could recover only such damages as he has proved that he suffered personally. If this request is to be understood as meaning that the plaintiff could recover only such damages as by the legal rule of damages he suffered, of course it should have been given. But the request when interpreted in the light of the contention of the defendant is not to be understood in that sense. As one of the methods of arriving at his damages the plaintiff had introduced evidence of the trouble experienced in getting tenants for the unfilled portions of the house after the deed to Murray. In the cross-examination of the plaintiff it became apparent that it was the position of the defendant that even if there was a loss of rents that was a loss not suffered by the plaintiff personally, because he was not the owner, and that such loss therefore could not be taken into consideration in estimating the damages. As thus understood the first request could not have been given.
The case was tried before the judge without a jury. The declaration sets out certain losses as elements of damage, and it is argued by the defendant that it substantially appears by the finding that the judge has adopted these losses as showing conclusively, as matter of law, the real damage.
But the rule of damages adopted by the judge is not stated. The declaration was in law a declaration to recover damages generally for breach of the contract. The presumption is that the judge proceeded upon the true rule, namely, the difference between the property as represented and as it was. It may well be that the evidence as to the difficulty in procuring tenants and the loss incurred by a failure to procure them was the best standard under the circumstances of this case by which to measure that difference.
Exceptions overruled.