Gilmore v. Hunt , 66 Pa. 321 ( 1870 )

The opinion of the court was delivered, January 3d 1871, by

Williams, J.

— This record was brought before us two years

ago by the defendant, for the correction of the error of the court below, in not entering judgment in favor of his intestate for the amount found to be due him by the jury, under his plea of set-off, and the judgment was reversed by this court, and entered for the defendant on the verdict in accordance with the finding of the jury. The case is reported in 9 P. E. Smith 450. It is now brought up by the plaintiff, for the correction of alleged errors committed in the trial, before the finding of the verdict. The plaintiff and the defendant’s intestate, who was living at the time of the trial, were the owners of a tract of coal-land in Westmoreland county, on which there was an open mine, which they had worked in partnership — but having become involved, the plaintiff sold out his interest in the coal property, subject to the payment of the judgments and other debts of the firm, to the defendant for the sum of $650 — $100 payable in seven days, and the balance, $550, in three equal instalments, for which the notes in suit were given at two, four and six months, each for the sum of $183.33.

On the trial, the defendant set up as a defence, under his plea of set-off, the refusal of the plaintiff to give him possession of the property, in accordance with the terms of his agreement, and gave in evidence the record of an ejectment which he brought against the plaintiff, in the Common Pleas of Westmoreland county, to February Term 1849, for the recovery of the possession of said property, in which a verdict and judgment were rendered in his favor; and showed, by the testimony of Kinney Goff, that he had made an agreement with the defendant to take out coal sufficient to pay $1000, at one-fourth of a cent a bushel; that he was ready and prepared to go on with the contract, but that it fell through in consequence of the refusal of the plaintiff to let him have possession of the property.

The jury, under the instructions of the court, found a verdict for the defendant, and returned a certificate in his favor for the sum of $450. The consequence of this finding is that the defendant gets the plaintiff’s half of the property for nothing, and the sum of $450 as damages, because he did not obtain possession of it a year or two sooner. This result, however wrong, if occasioned by the error of .the jury, we have no power to correct; but if it was occasioned, as alleged, by the error of the court ir. the instructions given to the jury as to the measure of damages for the plaintiff’s refusal to deliver possession of the property to the defendant, then it is our duty to correct it. The court charged that “ if the jury find from the evidence that Gilmore violated his part of the agreement by refusing to allow Hunt such possession, they might assess such damages as the evidence would warrant.” This was leaving the jury to find such damages as they thought proper, without giving them any rule or standard for their guidance. It was not a mere omission, but a misdirection; and the result, as shown by their verdict, was that they ran wild in their finding. They allowed the defendant, as damages, the $1000 which Kinney Goff had agreed to pay him for the privilege of taking out 400,000 bushels of coal at one-fourth of a cent per bushel, without a particle of evidence that the defendant had paid him any damages for the breach of the contract in not being able to deliver him possession of the mine, and without any evidence that the coal remaining in the mine, as it did, was worth any less at the time of the trial than the price which Goff had agreed to pay for it. The court, instead of leaving the damages to the discretion or caprice of the jury, should have instructed them as to the proper rule or measure of damages for thé breach of a contract, such as this, for the sale and delivery of the possession of real estate; and the measure which the jury would in law have been bound to apply, would be the amount of rent or profit that the defendant might have derived from the property from the time when possession ought to have been delivered to him under the contract and the time when it was obtained under the action of ejectment; in other words, the mesne profits during the interval. The count should hold the jury to the strict legal rule or measure of damages with a firm hand, by setting the verdict aside and granting a new trial whenever the jury palpably disregard or transcend the rule by their finding.

The other assignments of error are not sustained, and there is nothing in them requiring discussion. But for the error of the court, in not instructing the jury as to the proper measure of damages for the plaintiff’s breach of the agreement in refusing to deliver possession of the property, the judgment must be reversed.

Judgment reversed, and a venire facias de novo awarded.