Appeal, No. 134, April T., 1963, from judgment of Court of Common Pleas of Venango County, Aug. T., 1960, No. 59, in case of Clinton W. Hepler et ux. v. Harold E. Atts, executor of estate of Earl J. Atts, deceased. Judgment reversed.
Albert E. Acker, with him Max P. Gabreski, and Wiesen, Cusick, Madden, Joyce, Acker and McKay, for appellants.
Robert M. Dale, with him Dale and Woodard, for appellee.
Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).
[ 201 Pa. Super. Page 238]
The defendant's decedent conveyed to the plaintiffs a tract of land of approximately 125 acres, which included 25 acres which he did not own. The price paid for the tract was $6500. The plaintiffs are suing for damages because of the defective title to the 25 acres. The jury found for the plaintiffs but the court below entered judgment n.o.v. in favor of the defendant on the ground that there was no proper proof of damages.
1. The measure of the disappointed buyer's damages in such case is that fraction of the purchase price which represents the relative value which that part to which title is defective bears to the whole tract the seller purported to convey. Mengel v. Williamson, 50 Pa. Superior Ct. 100 (1912); Fuller v. Mulhollan, 40 Pa. Superior Ct. 257 (1909); and Krein et ux. v. Steigerwald, 128 Pa. Superior Ct. 51, 193 A. 390 (1937). Represented mathematically, if VP represents the value of the 25 acres to which title was found by the jury to be defective and VW represents the value of the whole 125 acre tract which the decedent purported to convey, the formula for ascertaining the damages recoverable in this case is VP/VW x $6500. Here there was no evidence as to one of the elements of the formula - the denominator of the fraction. While there was evidence as to the value of the 25 acre tract, there was no evidence of the value of either the whole tract purported to be conveyed or of the remaining 100 acres from which the value of the whole tract could be calculated by simple addition.
While the plaintiffs admit that the rule as to damages set forth in these cases is correct unless special damage is shown by either party, they contend that they are entitled to show any peculiar advantage or
[ 201 Pa. Super. Page 239]
disadvantage to them by reason of a loss of a part of their purchase and thereby increase or decrease the damages over the formula set forth above. For this they rely upon language in the charge of the lower court in the case of Fuller v. Mulhollan, supra. In that case the lower court charged: "You may take into consideration the peculiar advantages or disadvantages to the defendant by reason of the loss of a part of his purchase, in addition to the proportion which it would bear to the whole according to the price agreed upon between the parties." However, in affirming, this court used language which cannot bear the interpretation the plaintiffs seek to give it. This court said at page 260: "The instruction on that point was in substance that the proportion which the coal mined by the Standard Coal Company bore to that which remained in the land would be the basis for ascertaining the damage and that this should be fixed with reference to the consideration agreed to be paid. This instruction was in harmony with numerous cases and was well applied in this instance." This did not amount to an affirmance of the proposition that in addition to the proportion of the purchase price based upon the ratio of the value of the property lost to the value of the remainder, loss of any special advantages might be added to the damages. If it be contended that the loss of part might impair the value of the remainder because the two portions could be operated more profitably as a unit than separately, and that the formula might be modified in such case, there is no evidence in the case before us that would bring any such principle into operation. If, for example, the remaining hundred acres could be cut more advantageously or profitably if the 25 acre plot were attached to it, no evidence of such fact was offered by the plaintiffs. Therefore the rule that was applied by the court below is the proper one under the evidence.
[ 201 Pa. Super. Page 2402]
. The plaintiffs argue that there is evidence in the record of the proportionate value of the two parts of the land purported to be conveyed. Like the court below, we find no such evidence. The testimony as to the 100 acres was only that some timber on it had been cut and what remained was undersized, quite sparse and generally inferior hardwood, with little pine or hemlock. Mr. Breniman testified that the timber on the 25 acre tract was much better, being largely pine and hemlock and much denser than that on the 100 acre tract. Mr. Davis testified that the value of the whole tract lay in the 25 acre piece, that the rest "wasn't so good". The testimony of the other witnesses added little more. None of it amounted to anything more than general statements from which neither a dollar value nor a proportionate value could be found for the 100 acre tract. Since the 100 acre tract was four times the area of the remaining portion conveyed, the testimony that the timber on the 100 acre tract was not so good or so dense as that on the 25 acre tract or that some of it had been cut, raises no inference that the tract was less valuable, or even no ...