West v. Carter

¶1(dissenting)- — I agree to the rules as stated in the majority opinion, but I cannot assent to the conclusion that the plaintiffs were damaged in the sum of $650. The total value of the property which plaintiffs intended to purchase, as found by the court, was $2,130. The price paid was $1,650. The difference was $480, which represents the whole damage under the rule stated. The fallacy of the conclusion of the majority is readily seen by applying the rule *246as stated. It is also seen by the following considerations: If plaintiffs had rescinded the contract, as they had a right to do, they would have been required to return the whole property to the defendants and receive their money back, $1,650. Instead of rescinding the contract, they chose to keep the live stock valued at $550, and forty acres of land valued at $950, or a total value of $1,500. It must be assumed that the plaintiffs had paid, or were willing to pay, this value for the property which they retained. The trial court found that the eighteen acres of land, which was not conveyed, because it was not owned by the vendors, was of the value of $630. There must have been some consideration for the purchase of this tract of land. That consideration necessarily must have been at least the difference between $1,500, the value of the property retained by the plaintiffs, and the price paid, viz., $1,650, which difference is $150. This was the amount which plaintiffs paid in excess of the value of the property they received. The difference between the property received and what they intended to purchase was $630, for which they paid at least $150. They were, therefore, damaged in the difference, or $480. The result reached by the majority, in effect, says that no part of the consideration was paid for the eighteen-acre tract, and that all the profits of the purchase rested in this tract, which, of course, is not correct either in theory or usual dealing. I therefore think the judgment should be for the sum of $480 instead of $630.