On appeal from the Supreme Court.
For the appellant, Edward J. Gilhooly.
For the respondent, William A. Lord.
The opinion of the court was delivered by
PARKER, J. As we read the brief submitted for appellant without oral argument, the point made or attempted to be made is that the trial court erred in allowing the jury to find a verdict for the full amount of plaintiff's claim and should have restricted the verdict, if any, to nominal damages for failure properly to prove actual damages. Plaintiff had bought a building lot for $7,300 from a third party through the agency of defendant, and as an inducement to plaintiff to take the lot and pay the money, defendant gave plaintiff a writing whereby he agreed to "refund" the money
at the end of two years if plaintiff should then be dissatisfied with the bargain.
The paper is dated September 12th, 1928, and the evidence indicated that it was signed and delivered contemporaneously with plaintiff's contract of purchase, and was a part of the transaction. It reads as follows:
"This is to certify that, if at the expiration of two years (no buildings having been erected) Mrs. Emily Corby does not desire to further retain lots No. 47 and No. 48, S.S. Block No. 17, I will refund to her the full purchase price with 6% interest, excepting all encumbrances, liens, judgments, search fees and legal expenses. (Signed) H. S. WARD."
The qualifying phrases need not be considered, as no dispute exists on that score. It will be observed that in legal effect the instrument is a "seller's option" in favor of the plaintiff, entitling her to require the defendant to take over the property at what she paid for it, if at the end of two years she should be dissatisfied. Plaintiff was dissatisfied, and at the end of the two years tendered a deed to the defendant and asked for the $7,300, and the same not being paid, brought suit to recover it. Defendant claimed a modification of the contract, but that claim broke down and does not seem to be argued. In a charge to which no exception was taken, the jury were instructed that if they found the agreement to "refund" was contemporaneous with the purchase, the plaintiff, who had concededly tendered the deed to defendant, was entitled to recover the $7,300 with interest.
It is now argued that this instruction was erroneous, and that the plaintiff should have shown what the land was reasonably worth at the time, and if that was less than what she paid, should have recovered only the difference; failing which proof, the land would be presumed worth what she paid for it and only nominal damages would be recoverable.
Counsel for appellant were not concerned in the trial below; and they frankly admit that the trial counsel "made no request of the learned trial judge for any particular directions, nor was any exception taken to the charge ...