Commercial Investment Co. v. National Bank of Commerce

Citations

• 36 Wash. 287
• 78 P. 910
• 1904 Wash. LEXIS 552

Syllabus

<p>.Covenants — Breach—Damages—Assumption of Mortgage— Failure to Pay — r Measure of Damages — Partial Rescission. Where, upon the settlement of various differences and indebtedness, the plaintiff conveyed certain lands to the defendant, subject to mortgages, under an agreement that the defendant should pay off all the mortgage indebtedness and save the plaintiff from costs or suits thereon, a breach of defendant’s covenant in failing to pay one certain mortgage whereby plaintiff was subjected to a suit thereon, does not entitle the plaintiff, after full performance, to rescind the contract in part, and recover as damages the whole consideration for such broken covenant, since the contract is an entirety and must he rescinded as a whole, if at all, and the remedy is found in an action for the actual damages sustained.</p> <p>Same — Complaint—Sufficiency. In such a case, where the complaint alleges that the plaintiff elects to recover damages rather than have a rescission of the contract, and claims damages in the sum of $45,595.78 as the difference between the value of the property and the amount received for it, and it further appears by the pleadings that the mortgage, which went to foreclosure in violation of defendant’s covenant to save plaintiff from suit thereon, was finally paid by the defendant and the judgment satisfied, and plaintiff’s complaint alleges no special damages on account of such mortgage or suit thereon, it was not error, on defendant’s motion for judgment on the pleadings, to hold that no cause of action was stated in the complaint on which substantial damages could he recovered, as the plaintiff was entitled only to nominal damages under the facts shown.</p> <p>Appeal and Error — Review—Nominal Damages — Controversy Over Costs. The appellate court will not reverse a judgment for error in refusing to give nominal damages, since an appeal will not he entertained for the purpose of determining who is entitled to costs.</p>