Rakish v. Valerga

McMURRAY, J. pro tem.

*

Defendants appeal from a judgment awarding plaintiffs $1,500 for breach of contract. Appellants agreed to sell certain real property to respondents for $3,250. An agreement of sale and deposit receipt dated February 15, 1949, acknowledged receipt of $250, and provided that the balance be paid at $35 per month with interest at 6 per cent. This agreement also contained several conditions of sale. Those here pertinent are numbered (2) and (4). Number (2) provides: “Road fronting on property to be guaranteed to be improved (to permit passage of automobiles throughout the year) within 30 days.” This road was not on the property conveyed to the plaintiff. Condition number (4) provides: “Water and electricity to be guaranteed to be available to buyer.” Respondents took

[276]

possession of the property and undertook the construction of a dwelling.

On July 5, 1951, respondents filed a complaint for damages and filed an amended complaint on July 14, 1952. In the complaint it was alleged that the parties entered into the agreement of sale and that appellants failed to construct a road and failed to have water and electricity available to respondents; that respondents had commenced the construction of a dwelling house on the property in reliance upon the appellants’ promises to construct a road and have water and electricity available, and that the respondents had been damaged in the sum of $5,000 representing the cost to respondents of constructing the road and the additional cost to respondents in constructing the house. It is also alleged that respondents were required to pay rent for 15 months at the rate of $40 per month.

At the trial there was testimony that the condition of the road fronting on the property was impassable for automobiles during certain rainy periods in the winter. It was stipulated that the only damages sought in the action were those arising from the failure of appellants to put the road in proper condition and the failure to get electricity to the property in time for respondents to use power tools in building the house. The court found “That the cost of improving the road fronting on the aforementioned property to permit passage of automobiles throughout the year is the sum of Fifteen Hundred ($1500.00) Dollars,” and gave judgment for respondents in that amount. No finding was made relative to any damage by reason of the failure to have electricity available or relative to rent.