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DEMPSEY v. STAUFFER

September 14, 1961

S. Curtis DEMPSEY and Alice E. Dempsey
v.
Charles W. STAUFFER, and Violet M. Stauffer, James E. Lawrence and Ruth B.Lawrence



The opinion of the court was delivered by: KRAFT

This case is now before us solely on the issues of damages, all questions of liability having been determined in our earlier adjudication. D.C., 182 F.Supp. 806.

From the evidence, supplemented by stipulations of counsel, we make the following.

 Findings of Fact

 1. Plaintiffs paid to the defendants Stauffer the sum of $ 6,467.22 on account of the purchase price of the premises, in weekly installments of $ 113.46 each, as provided by the contract of sale.

 2. In addition thereto, plaintiffs paid to the defendants Stauffer the sum of $ 3,059.40 representing interest at the rate of 5% Per annum on the unpaid balances of the purchase price of the premises, as provided in the contract of sale.

 3. Defendants Stauffer expended the sum of $ 754.34 in payment of real estate taxes, water and sewer rents and electric bills, all of which were plaintiffs' obligations under the contract of sale, and were referable to plaintiffs' occupancy of the premises.

 4. The fair market value of plaintiffs' personal property converted by defendants Stauffer and Lawrence, at the time of the conversion, was $ 1,002.07.

 Discussion

 Plaintiffs contend that Stauffers' breach of the contract of sale entitles plaintiffs to damages for the loss of their bargain. The rule in Pennsylvania as to the measure of damages for breach of a written contract to convey land was lately restated in Frey v. Nakles, 1955, 380 Pa. 616, 622, 112 A.2d 329, 332:

 'It has been well settled that in a vendee's action against his vendor for breach of a written contract to convey land, the vendee's right of recovery, if the vendor acted in good faith, is limited to the down money, and such other reasonable expenditures that the vendee has incurred in reliance upon the contract. Kargiatly v. Provident Trust Co. of Philadelphia et al., 338 Pa. 358, 12 A.2d 11. However, where a vendor or lessor arbitrarily and without reasonable excuse, in order to escape the effects of a bad bargain, refuses to comply with his contract, the vendee or lessee is entitled not only to compensatory damages but to damages arising from the loss of his bargain: Bartram v. Hering, 18 Pa. Super. 395; Seidlek v. Bradley, 293 Pa. 379, 142 A. 914, 68 A.L.R. 134. In the latter case, Mr. Justice Kephart said in 293 Pa. at page 383, 142 A. at page 916 that '* * * Any unjustified failure to perform a written contract, whether this failure be fraudulent or not, entitles the vendee to damages for the loss of his bargain. * * * "

 Plaintiffs relied upon the testimony of Karl B. Wagar, a licensed real estate broker and appraiser. Wagar testified to an overall value, a 'rounded figure,' of $ 65,000, of which $ 23,750 represented value of the land, and $ 42,000 'depreciated market value' of the building. (Counsel later stipulated that the $ 65,000 valuation included certain fixtures and equipment in the diner, not necessary to detail for present purposes). Wagar was not interrogated at all concerning market value or 'fair' market value. Asked, on direct examination, the basis of his land value, he stated: 'There are comparable land sales in the area at just about that time, some prior and some later.' A moment later the witness said, 'We are on land comparables here, the sales of land.' He then testified to several particular sales of land in the vicinity, giving the actual sales price in each instance. It is rudimentary that this was not competent evidence of market value. 'It has been held in Pennsylvania from an early date that a consideration of particular sales in the neighborhood as fixing market value will not be allowed.' Rea v. Pittsburg & C. Railroad Company, 1910, 229 Pa. 106, 116, 78 A. 73, 77. Citations might be multiplied indefinitely. One of the more recent rulings to the same effect is found in Felin v. City of Philadelphia, 1946, 354 Pa. 317, 318, 47 A.2d 227, 228:

 'The trial judge correctly stated the settled law of this Commonwealth as follows: '* * * it is not competent to prove by an expert witness the prices paid for other properties in the immediate neighborhood on direct examination, but he may be asked to state such prices, for the purpose of testing his credibility, good faith, and the accuracy and extent of his knowledge, on cross-examination, and interrogated thereabout, when the cross-examination opens the door upon redirect examination. Brown v. City of Scranton, 231 Pa. 593, 603, 604, 80 A. 1113; Girard Trust Co. v. City of Philadelphia, 248 Pa. 179, 182, 183, 93 A. 947; Pennsylvania Co. for Ins. on Lives, etc., v. City of Philadelphia, 268 Pa. 559, 562, 564, 112 A. 76; McSorley v. School Dist. of Avalon Borough, 291 Pa. 252, 255, 256, 139 A. 848; Serals v. West Chester Borough School District, 292 Pa. 134, 135, 138, 140 A. 632; Bridgman Realty Corp. v. City of Philadelphia, 317 Pa. 449, 452, 177 A. 45.' The reason for the rule is that to allow such testimony on direct examination would lead to the investigation of collateral issues as numerous as the sales.'

 Wagar's testimony with respect to the value of the improvements was little, if anything, more than hearsay. He had had practically no experience in appraising diners, and he frankly admitted that his estimate was based on inquiry and discussions with others. He gave an afflrmative answer to the following question on cross-examination: 'And all of the figures which you got with respect to replacement costs were ...


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