Employees' Participating Assn. v. Pine

WOOD, J.

This is an action to recover damages for breach of contract to purchase real property. Judgment was for plaintiff for $2,500. Defendants appeal from the judgment.

The property involved herein, consisting of an improved lot and two adjoining unimproved lots, was listed with a real estate broker for sale for $25,000. On April 8, 1946, defendants entered into an agreement to purchase the property for $21,750 and paid a deposit thereon of $500. Escrow instructions were signed by the seller and the purchasers, and the seller delivered a grant deed and “a bill of sale” into escrow. About July 3,1946, before the escrow had been closed, defendant Jacob Pine sent a notice of rescission to the escrow holder and to the plaintiff. Thereafter, plaintiff commenced this action and alleged it was damaged in the sum of $6,750.

Appellants contend that the complaint did not state facts sufficient to constitute a cause of action; that the finding of fact relating to the amount of damages was not sustained by the evidence; and that the judgment is not sustained by the evidence.

Appellants assert that the complaint did not state facts sufficient to constitute a cause of action for damages, for the reason that it did not allege the value of the property at the time of the breach. It was alleged in paragraph VII of the complaint herein, as amended, that “since defendants’ breach of contract as aforesaid, the value of said property has decreased from Twenty-One Thousand Seven Hundred Fifty ($21,750.00) Dollars to Fifteen Thousand ($15,000.00) Dollars, all to the plaintiff’s damage in the sum of Six Thousand Seven Hundred Fifty ($6,750.00) Dollars.” The measure of damages for breach of agreement to purchase real property is stated in section 3307 of the Civil Code, which

[301]

provides that the damage sustained by a seller by reason of a breach of agreement to purchase real property is the excess, if any, of the contract price “over the value of the property” to the seller. As a general rule, “the value of the property” to the seller is the market value of the property at the time of the breach

(Shurtleff

v.