Reeder v. Reeder , 89 Ky. 529 ( 1890 )

JUDGE BENNETT

delivered the opinion op the court.

The written agreement between the appellant and appellee is to the effect that the appellant conveyed to tbe appellee the appellant’s tract of land, and, as is alleged and not denied, put the appellee in the possession of it. The conveyance, as is alleged, was made in consideration of fifty dollars cash, and four hundred and fifty dollars, to be discharged by the appellee doing, or causing to be done, the appellant’s :and his wife’s, the latter being now dead, cooking and washing during the life of each. Also, the appellee was to furnish the appellant and his wife “a part of a reasonable support; ’ ’ also, he was to give them, in case of sickness, care and attention, &c. It was evidently contemplated by the parties that this support, attention, &o., should continue during the life of each, and that the price of the land would be ample pay for such services. It is alleged that the appellee failed to render any of the services or to pay any part of said sum of money; on the contrary, it is alleged the appellee refused to render any part of said services or to pay any part of said money, and drove the appellant away from his house. The services that the appellee was to render were to continue during the respective lives of the appellant and his wife — that is, the undertaking was entire, and upon the failure of appellee to comply with the contract, the appellant could have recovered damages for the non-performance during his entire life. The damages accruing to the time of the trial, by reason of the fact that the appellant’s health, condition and necessities could be accurately surveyed, could be easily ascertained by a jury ; also, the damages thereafter, taking into account the appellant’s age, health and condition, and consequent duration of life, are not too conjectural to be passed on by a jury. We have an instance of the kind in the ascertainment of the money value of a life estate by means of the life-table, &c. But such damage is always speculative or conjectural. Life may be shorter or lunger than anticipated. The party’s physical health may become more feeble or more robust than anticipated, or his mind may become impaired, &c., &c. These changes of conditions may render the damages assessed very excessive or grossly inadequate. For these reasons the party aggrieved should be forced to resort to such measure of compensation only in the absence of a more certain measure. If a more certain measure is at hand, the party aggrieved should, at his election, be permitted to resort to it. Here, as the appellee has refused to comply with his part of the contract, and as he can return the consideration, and thus the appellant and he will be placed in statu quo, the chancellor, at the election of the appellant, should not hesitate to do it.

The judgment is reversed, with directions for further proceedings consistent with this opinion.