Jensen v. Dalton

Opinion

CHRISTIAN, J.

Clyde and Mary Dalton (herein called sellers) appeal from a judgment, after nonjury trial, awarding Jim and Carol Jensen (herein called buyers) damages in the amount which buyers had deposited in escrow under a contract to purchase real estate. The judgment also denied relief to sellers on their cross-complaint for damages due to buyers’ breach of the same contract.

The contract called for the sale of sellers’ home to buyers at a price of $36,950. Buyers paid $7,010 of the price into escrow, and later released $5,000 of that amount to sellers, to be used as a down payment on another home. In a few days buyers, without lawful excuse, repudiated their agreement to purchase the property and demanded the return of their deposit. Sellers refused to return the deposit; the present action ensued.

The pleadings establish that the fair market value of the property was at all pertinent times equal to the agreed purchase price. Sellers nevertheless sought damages on the cross-complaint, and presented the following offer of proof:

“At date of breach, because of the nature of the market at that date although the gross sales price of the property would be the same, in order to sell at that price, Defendant and Cross-Complainant would have to employ a real estate broker to sell the property at a commission of six (6%) percent of the sales price, or two thousand two hundred seventeen ($2,217.00) dollars.

“At date of breach, to sell at that gross sales price, Defendant would have been required to pay financing charges for a new buyer to secure a loan, which would require the payment of five (5%) percent of the loan to be secured (5% x $29,500.00) or one thousand four hundred seventy-five ($1,475.00) dollars.

“That the state of the market at the date of repudiation was such that a prospective buyer would require seller to pay the proposed sewer assessment to be levied on this property of at least two thousand four hundred three ($2,403.00) dollars.

[657]

“That Plaintiff interfered with Defendant’s ability to use the subject property in that Plaintiff gave Defendant authority to withdraw five thousand ($5,000.00) dollars from the escrow for this transaction as a deposit on a new residence for Defendant. Defendant deposited said five thousand ($5,000.00) dollars toward the purchase of the new residence. Upon Plaintiff’s breach, Defendant was required to secure financing for the new residence he had purchased at a cost to Defendant of Four Hundred Twenty ($420.00) dollars. Furthermore, Defendant is now required to maintain two (2) residences and commute a distance of two hundred sixty-six (266) miles round trip once a week at ten (10(0 cents per mile to care for the subject realty, and pay for utilities and taxes at the subject property to his detriment in the amount of seven hundred eighteen ($718.00) dollars.