Moore v. Fredericks

SHAW, J.

Action to recover damages for breach of contract whereby defendants agreed to convey real estate to plaintiffs.

Defendants appeal, upon the judgment-roll from a judgment by default in favor of plaintiffs, entered after the overruling of defendants’, general demurrer to the complaint.

The complaint alleged the making of a written contract between the parties whereby plaintiffs agreed to convey to defendants certain real estate and to pay them one hundred dollars in cásh, and defendants on their part agreed to convey to plaintiffs certain lands fully described therein; that plaintiffs on their part fully complied with the terms of the contract by paying the one hundred dollars and conveying to defendants the lands as required by the agreement; that defendants on their part made default in the performance of the contract in that they neglected and failed to convey to plaintiffs the lands so agreed by them to be conveyed; that by reason of defendants’ breach in the performance of the terms

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of said contract, plaintiffs are damaged in the sum of two thousand dollars, for which sum they prayed judgment.

Appellants insist the complaint fails to state a cause of action, and hence the court erred in overruling the demurrer interposed thereto. In addition to the making of the contract and the breach thereof by defendants, as shown by the complaint, it is alleged that by reason of such breach plaintiffs have been damaged in the sum of two thousand dollars, for which judgment is demanded. . While appellants concede the sufficiency of these allegations in stating a cause of action for the recovery of general damages, they insist that any damages resulting from breach of the contract must necessarily have been special in their nature. “General damages are those which necessarily and by implication of law result from the act or default complained of.” (8 Ency. of Law, p. 542.) Or, as said in

Wallace

v.

Ah Sam,

71 Cal. 197, [60 Am. Rep. 534, 12 Pac. 46]), they are those which “involve the loss which naturally flows from, and is presumed from, the contract and its breach.” Special damages are the natural, but not necessary, result of the act complained of. Section 3306 of the Civil Code, which declares a rule for the measure of damages in this character of actions, provides: “The detriment caused by the breach of an agreement to convey an estate in real property, is deemed to be the price paid, and the expenses properly incurred in examining the title and preparing the necessary papers, with interest thereon; but adding thereto, in case of bad faith, the difference between the price agreed to be paid and the value of the estate agreed to be conveyed, at the time of the breach, and the expenses properly incurred in preparing to enter upon the land. ’ ’ Damages due to expenses incurred in examining the title and preparing necessary papers in a given transaction and for which recovery may be had do not necessarily arise from the breach of a contract to convey real estate; hence they are special, and the fact that such expenses are incurred and the amount thereof, in order to recover therefor, must be specially pleaded. Not so, however, as to damages for failure to convey real estate where the consideration therefor has been paid. For such breach on the part of the one in default damage follows not only as the natural but presumably necessary result thereof. The fact that the statute prescribes a rule