Mobley v. Lott

Beck, J. (After stating the facts.) 1. The defendant did not attack any particular portion of the plaintiff’s petition by special demurrer, but was content to test the plaintiff’s case by a general demurrer, based upon the grounds, (1) “that there is no cause of action alleged, and that under the allegations of plaintiff’s petition, he is not entitled to recover of or from this defendant any amount: whatever,” and (2) “that the damages therein sought to be recovered from this defendant are too remote and speculative.”' Thereupon it was ordered and adjudged by the court that the “foregoing demurrer be sustained upon each and every ground therein contained, and because the petition of the plaintiff does not allege-that said contract set up in said petition was reduced to writing so as to take said case out of the statute of frauds.” The court, erred. The petition did state a cause of action. The damages, claimed were not too remote. The fact that the petition failed to allege that the contract, the breach of which is relied upon as the foundation of the suit, was in writing, can not be taken advantage-of by demurrer. Where one enters into a valid contract for the-sale of lands to another and commits a breach of that contract by denying his obligations under it and refusal to perform or by disposing of the property so as to render the performance of his. obligation impossible, he becomes liable to the other party to the contract for damages flowing from the breach. In the present case the defendant had contracted to sell to the plaintiff the lands, described in the petition. Before performance, he had sold and conveyed the same land to a stranger, thereby rendering performance upon his part impossible. Cooley v. Moss, 123 Ga. 707; 7 Am. & Eng. Enc. of Law (2d ed.), 149 (5). If the allegations in the petition are true, and they are to be-so taken as against the demurrer, the plaintiff had a profit of $1,100-in his bargain. That sum represents the difference between the market value of the land and the price at which he had contracted to buy; and that sum is the measure, under the pleadings, of the-injury and damage sustained by the plaintiff by reason of the-defendant’s failure to fulfill his obligation under the contract. The law aims to place the injured party, so far as money can do it, in the position he would have occupied if the contract had been ful [574] filled. Such is the rule as recognized in'this State. Our attention has not been called to any case decided by this court in vjhicli the rule has been relaxed, though in other jurisdictions it appears to have been. Irwin v. Askew, 74 Ga. 581; 2 Sutherland on Damages (3d ed.), §§578-581. 2. The. rule contained in the second headnote is so well settled that elaboration and discussion thereof is entirely unnecessary. Ansley v. Hightower, 120 Ga. 719. Judgment reversed. All the Justices concur, except Fish, G. J., absent.