Cuff v. . Dorland

Neither party has appealed from that portion of the judgment of the General Term of the Supreme Court which reverses the judgment entered at Special Term. It must consequently be assumed that the complaint was improperly dismissed. The only question, therefore, presented for our decision is, whether the General Term properly rendered judgment for damages in favor of the plaintiff. It appears by the decision of the justice at Special Term, that it was based on the ground that he considered the contract "so objectionable in its terms and in the circumstances under which it was procured, that a court of equity will not lend its peculiar and extraordinary jurisdiction to enforce it." The opinion given by INGRAHAM, J., on the reversal of the judgment entered on that decision shows, that while he considered the refusal to grant specific performance right, he thought that the justice "should have retained the case for the purpose of awarding to the plaintiff the damages he was entitled to for the non-performance." Assuming that such course ought to have been pursued, a new trial should have been ordered by the General Term. The question of damages was one that should be determined by the court or tribunal for the trial of issues of fact, and not by the appellate court, which can only review the decisions of the tribunal from which the appeal is taken. The General Term, therefore, erred in rendering final judgment in favor of the plaintiff for the amount of damages resulting from the breach, by the defendant, of the contract, which had never been passed on by the court below. *Page 562 It is true that the findings of fact by the justice show that the plaintiff had paid the defendant the sums for which judgment was rendered by the General Term, on account of the price that he was to pay for the land sold to him, and, according to the findings, "in part performance" of his agreement; but those sums do not necessarily constitute the whole compensation to which the plaintiff would be entitled as damages. Indeed, the opinion referred to states certain facts, from which it is fairly inferable that there are other items for which an allowance could be claimed. It is unnecessary to mention them particularly, and without an examination of the evidence it would be impossible to say what would be proper to be allowed. A new trial should be ordered, and upon the facts then disclosed it will be proper to determine what relief should be granted. It is not, under the circumstances in which the case is presented on the present appeal, proper to indicate whether the decision at Special Term, declaring that the plaintiff was not entitled to a specific performance, was proper or not, but that should be left an open question. It follows, from the preceding considerations, that the portion of the judgment appealed from should be reversed and a new trial ordered, costs to abide the event.