Opinion
No. 4274.
Submitted January 6, 1954.
Decided January 29, 1954.
In an action to recover damages for breach of a written contract to sell certain real estate the burden of establishing that the value of the premises at the time fixed for delivery of the deed exceeded the contract price was upon the plaintiff and evidence tending to show such excess value did not require acceptance as a matter of law.
ACTION AT LAW, for damages alleged to have resulted from breach of a written contract to sell certain real estate in Manchester. Trial by the Court (Leahy, J.). The Court found for the plaintiffs, assessing damages in the sum of one hundred dollars. The following finding was made: "The only evidence from which the Court can assess damages with any certainty is that showing the inconvenience and trouble caused to the plaintiffs by the conduct of the defendants."
The plaintiffs moved to set aside the verdict as inadequate, and against the law and the evidence, and the weight of the evidence; and excepted to denial of their motion. Reserved and transferred upon this exception by the Presiding Justice. Other facts appear in the opinion.
Bois Bois for the plaintiffs.
Ernest R. D'Amours for the defendants.
The written agreement of the parties dated July 8, 1950, provided that the defendants would sell the premises in question to the plaintiffs, and convey the same within thirty days by warranty deed, free and clear of all encumbrances, upon payment of $17,850. It could be found upon the evidence that the defendants were unable to make such a conveyance, and that the plaintiffs expended time and money in an attempt to procure an effective discharge of a mortgage the recorded discharge of which was defective. To establish their damages, the plaintiffs introduced evidence that an appraisal of the premises made as of December 4, 1952, showed them to be worth $19,200, and that real estate values in general were then approximately ten per cent less than in August, 1950. The witness testified that he had no "appraisal of what [he thought the particular property] was worth in 1950."
The evidence did not compel a finding that the plaintiffs' damages were $3,483, as the plaintiffs contend. There. is no reason to believe that the Court failed to apply the elementary rule of damages. On the contrary, all presumptions are in favor of the verdict. Chabot v. Shiner, 95 N.H. 252, 255. The plaintiffs were entitled to recover the difference, if any, between the value of the premises at the time fixed for delivery of the deed, and the contract price. Hurd v. Dunsmore, 63 N.H. 171. The burden of establishing that value was upon them, and it was not established as a matter of law by the evidence of the replacement cost new, less depreciation, two years later. There was no evidence that the value of the property in question declined ten per cent in those years, and the Court was not required to accept the evidence as an accurate measure of market value in August, 1950. See Davis v. State, 94 N.H. 321.
No exception is transferred which raises the question of the plaintiffs' right to recover for "inconvenience and trouble" in this action, and accordingly the order is
Judgment on the verdict.
All concurred.