Adams v. Hiner

NOURSE, P. J.

This appeal comes to us on the judgment roll alone. The appellants sued to eject respondents from certain real property. The respondents set up by way of answer an affirmative defense pleading that they were in possession under an express contract under which appellants sold the premises to them and agreed to construct a residence thereon according to agreed plans and specifications; that respondents had paid the sums called for under the contract, but that appellants had failed to complete construction of the building according to these plans and specifications, or otherwise. Thereafter respondents as plaintiffs commenced another action alleging appellants’ breach of the contract in more detail and seeking damages for the breach in the sum of $5300. The eases were consolidated for trial and respondents had judgment for $4000 which was ordered to be applied upon the unpaid balance due appellants under the contract.

The trial court made extensive findings covering a great number of defects in the construction of the building, and the appellants concede that on their appeal based upon the judgment roll they may not contend that respondents are not entitled to damages. It should also be conceded that, for the same reasons, they may not contend that the award of damages is excessive. It is their contention that the trial court adopted the improper measure of damages. That is to say, they contend that since the contract is a simple “real estate sales agreement” the proper measure of damages is “the difference between the actual value of the property and its value had the property been as represented,” citing

Hines

v.

Brode,

168 Cal. 507, 510 [143 Pac. 729];

Paolini

v.

Sulprizio,

201 Cal. 683 [258 Pac. 380], and similar, authorities. The argument would bear weight if it were based upon a sound premise. But this is not an action for rescission, fraud, or deceit; and it is not one based upon a simple real estate sales agreement. To the contrary, the agreement recites that “The first party is now erecting a residence on this property

which is to be finished

according to plans and specifications except there is to be a room added on according