Opinion of the court by
JUDGE DURELL-E
Reversing.
On February 12, 1891, by a written contract betw'een appellants and-tbe appellees, the executors of Eliza R. Cocke, it was recited that appellants “hereby agree to purchase from said Cocke’s executors the following real estate, lo[217] cated in the county of Jefferson, Kentucky, towit, a tract of land containing 609 acres more or less, -. . . for the sum of $250,000, to be paid as follows: One-fourth cash, and the balance on or before one, two, and three years, with interest at six per cent, per annum from date till paid; said deferred payments to be secured by deed of trust on said land. The said Allison & Fawcett hereby agree to pay five per cent, of said cash payment — said five per cent amounting to the sum of $12,500 — on or before the first day of March, 1891; and they agree further to-pay the residue of said cash payment, with six per cent, interest thereon from date till paid, on or before the first day of May, 1891. The said Allison & Fawcett hereby also agree that in the event they do not pay the residue of said cash payment by May 1, 1891, then said sum of $12,500' paid by them on or before the first day of March, 1891, shall be wholly forfeited to said Cocke’s executors, without recourse on the part of said Allison & Fawcett. And said Cocke’s executors hereby agree that, in the event that the residue of said cash payment is paid on or before May 1, 1891, and the notes for the deferred payments and said! deed of trust are executed and delivered to them, then they will convey said tract of 'land to said Allison & Fawcett, or their assigns, by good and sufficient deed of conveyance, with general warranty. It is further agreed by said -parties-of the first and second parts that, in the event that the residue of said cash payment is not paid on or before May .1, 1891, then this contract to be null and void, and of no effect, except as to the payment of said $12,500 to said Cocke’s executors by said Allison & Fawcett.” By an addition to the writing, referring to its terms, an exactly similar contract was made between Allison & Fawcett and the appellees, Preston’s executors as to a tract of land. [218] adjoining the Cocke land, containing 820 acres, more or less, the price of which was stipulated to be $160,000, payable in exactly the same manner as the purchase price of the Cocke land. $12,500 was paid to Cocke’s executors and $8,000 to Preston’s executors, but appellants were unable to pay the residue of the cash payments. On May 1, 1891,, Cocke’s executors tendered a deed, and demanded payment of the residue of the cash payment, which being refused they declared the transaction dosed, declared a forfeiture of the $12,500 which had been paid, and gave an option upon their land to other persons. The Prestons made a tender of their deed upon August 11, 1891, and in like manner declared a forfeiture of the $8,000 which had been paid to them. Suits were brought by appellants to recover the sums paid, on the ground that a good title could not be made under the Cocke contract; that the Preston ■land was agreed to be purchased as forming one tract with the Cocke land, the whole agreement as to both tracts forming one contract; and that the retention by the Cockes and Prestons of $20,500 was a plain and simple forfeiture, for which nothing was given. On the other hand, it was claimed; that the agreements were mere options to purchase, for the giving of which the two sums aggregating -$20,500 formed the consideration. A number of other questions were raised, none of which are necessary to the consideration of the present appeal.
On the former appeal this court held, Allison v. Cocke’s Ex’rs, 106 Ky., 768 (21 Ky. Law Rep., 441) (51 S. W., 593), that the contracts were contracts for the sale of land, and not contracts by which, for a money consideration, options were granted at a fixed price. It was held, also, that both the provisions for a forfeiture and the provision that the contracts should be void for nonpayment of the remainder of the [219] cash payment agreed on were not inserted for the benefit of appellants, but for that of appellees; that, under the-, latter provision, appellees had the right either to sue for an enforcement of the contract or to declare it annulled for nonperformance; that, having availed themselves of their privilege, and declared the contract at an end, the: payment made was a penalty, and could not be construed to-be an amount fixed as liquidated damages; that, therefore, equity should relieve against the penalties sought to be-enforced, and compel the restitution of the purchase money-paid, less the actual damage to the vendors occasioned by the breach, but that the amount was not limited to the expenses incurred by appellees- in coming from Virginia to qualify in this State, and that they were entitled to de- . duct whatever amount they could show they had been damaged by the breach of what was conceded to have been an advantageous contract. On the return of the cases,, the appellees (defendants) filed amended answers and counterclaims, and moved to transfer the cause to the common-law docket. Appellants objected, and the. motion was overruled. Appellees then moved the court to -direct an issue out of chancery for the trial by jury of the issue of' damages tendered by the amended answers and counterclaims. This motion was sustained over the objection of the plaintiffs. As the causes were heard together, upon the same evidence and similar pleadings, we shall consider them as one case, except where it may be necessary to-treat them separately. The amended answer and counterclaim avers that appellees were put to great trouble and expense by reason of the failure of appellants to comply with the contract; that the amount agreed to be paid for the laud, towit; $250,000 for the Cocke land' and $160,000 for the Preston land, exceeded the actual value of the land" [220] at the, date of the breach by more than $50.000 in the one case and -by more than $60.000 in the other case.' Various sums were also claimed as incurred by reason of the contracts, viz., expenses of traveling to and fro between Virginia and Kentucky in executing and endeavoring to enforce the contracts, and in amounts incurred and paid to real estate agents for effecting the sale. A trial was had on ■certain issues of fact submitted to the jury by the court. What was the fair market value of the Cocke land on May 1, 1891, and of the Preston land on August 11, 1891— the dates named being the ones upon which the respective contracts were declared by the vendors to be at an end? The jury found that the fair' market value of the Cocke land on the date indicated was $250,000, and the fair market value of the Preston land on the date indicated was $160.000; those sums being exactly the sums stipulated for as the purchase price of the two properties in the contracts of sale. Appellees moved for a new trial ■on the issue out of chancery on the ground that the verdict was not sustained by sufficient evidence, was against the weight of the evidence, and contrary to law; on the ground of error of law occurring at the trial in the admission and rejection of evidence, and in the refusal of the court to submit to the jury the question of damages sustained by appellees in procuring and carrying out the contract sued on; and on the further ground of misconduct of counsel for the prevailing party in arguing to the jury that the contract sued on had been adjudged by this court to be a sale. A transcript of the record on the trial of the issues out of chancery was filed, and orders made, the ultimate effect of which was to give leave to take further proof on the question of the amount of expense incurred and paid appellees in complying, or tendering compli[221] anee, •with the contracts sued on. Additional grounds for a new trial were filed by appellees, more specifically set ting forth appellees’ grounds of complaint, and also separate exceptions to evidence taken on the hearing. The learned chancellor below, in his opinion and judgment, took the ground that the verdict of the jury upon the issue out of chancery, while entitled to the greatest respect, was not conclusive upon the chancellor on the final submission of the case; that the intervention of the jury was merely auxiliary to the court, and served only as an aid to the court in rendering its final decree. He held, moreover, that, if this had been an action at law by the appellees against Allison & Fawcett to recover damages. for the ■breach of the contract, he would have no hesitation in granting a new trial, because the jury, in making up their verdict, were, influenced by statements of witnesses which should not have been admitted by the court or considered by the jury. He thereupon proceeded to consider the evidence in the record which he deemed material, rejecting a large part of the testimony which had been admitted to the jury; set aside, the verdict of the jury on the ground that incompetent testimony had been admitted in evidence, and that the verdict was not sustained by, and was contrary to, the weight, of the competent evidence; and rendered judgment in favor of Cocke’s executors for $35,-500, subject to a credit of $12,500, paid under the contract, with interest from the date of its payment, and a judgment in favor of Preston’s'executors for $32.000, subject to a credit of $8,000, the amount paid under the contract, with, interest from the date of its payment. The questions presented on both sides, and most elaborately argued, seem to cover all possible aspects of the case. We shall not attempt do set them out in detail in this opinion, but shall [222] content ourselves with a general statement of what we consider the controlling principles.
• When the opinion and mandate of this court were filed, if no new issue had been presented, the duty of the,chancellor was plain and simple. There was but one thing to be done. That was, to decree relief against the forfeiture provided in the contract, and give judgment for the sums forfeited, in accordance with the mandate. The litigation over that question was at an end. It was established that the vendees were entitled to recover the sums paid by them, but that the vendors might, if they desired, show what' damages they have suffered by the breach, and deduct the amount.thereof from the amount the vendees were entitled to recover. The vendors, by their answers and counterclaims, set up the damages they claimed. For all practical purposes, the cases then stood in the position of actions for damages. There can be no question that the consideration of an issue as to the amount of damages suffered is one peculiarly within the province of a jury. That was the only issue in the case, the question of relief against the forfeiture having been definitely determined. So, when the vendors moved to transfer the cases to the ordinary side of the docket, their motion should have been sustained. The cases should have been so transferred, and the amount of damages should have been ascertained by a jury, under proper instructions. But, as the vendees objected to the transfer, they can not be he.ard to complain that the motion was overruled, for they are in the position of consenting that the issue should be tried by the court in equity. The vendors then moved for an issue out of chancery upon the question of damages. This also was objected to by the vendees. The court did not grant the motion as made, but granted ah issue out of chancery [223] to ascertain the market value of the two tracts at the time the contracts were broken. This left it to the court to ascertain by computation the damage, if any, occasioned by the depreciation between the dates of the contracts and the dates of the breaches. The vendees not only objected to the motion to direct an issue out of chancery for the trial of the issue of damages tendered by the answers and counterclaims, but excepted to the order granting that issue with á modification. Although the vendees objected to the issue out of chancery, and excepted to the manner of its submission, nevertheless, if it was right to grant such an issue, and the issue was properly tried and determined by the jury, the vendees were entitled to the benefit of such determination, unless there had been previous prejudicial error against the vendors. We need hot discuss at this point the various questions upon the admission and rejection of testimony urged by the vendors as justification for the setting aside of the verdict of the jury, for we have reached the conclusion that, under all the circumstances of these cases, the verdict should have been set aside. The vendors were entitled to have a jury pass upon the issoe of damages — ascertain the extent to which they had been injured by breaking the contracts-— and not merely answer a question of value of the property at the date of the breach. For this and other reasons, not necessary to be here set- out, we are of opinion that the action .of the chancellor in setting aside and disregarding the verdict was proper.
When the verdict was properly set aside, the chancellor, so far as the Anndees were concerned, had the right to proceed to determine the issue presented by the counterclaims. If he determined the issue upon correct legal principles and upon the competent testimony, the vendors might com[224] plain, because they demanded their right to have that question determined by a jury; but the vendees could not be heard to do so. In his opinion the learned chancellor below rejected practically all the testimony introduced by the vendees to show the existence of an unusual real estate market, in 1891, in and about the city of Louisville, produced by a widespread desire to purchase suburban properties for purposes of development or speculation. Said the court, referring to a number of witnesses who had testified to the existence-of such market and such demand: “The testimony of the foregoing witnesses, it will be seen by a critical examination thereof, places an unreal, fictitious, speculative value upon the land, and does not determine what was its fair,-reasonable market value; and yet the jury was permitted to hear that testimony, and to base iheir verdict upon it. ..." The vice in the verdict, therefore, involves no blame upon the jury as having given a verdict contrary to the evidence, but a verdict essentially based upon evidence wdiich should not have been con-. sidered by them.” And in the judgment it was said that “the verdict was not sustained by, and was contrary to, the weight of the competent evidence.” It follows, therefore, that, if this evidence was all incompetent, the court did right in rejecting it; but, if it was competent, the court erred, and we should state wherein it was competent, and the extent to which and the proposes for which it should have been admitted. The evidence shows that the Cocke and Preston heirs owned two adjoining tracts of land, aggregating nearly 900 acres, about a mile and a half south of the city limits of Louisville, extending from Preston street pike to the Poplar Level pike, and crossed from east to west by the Louisville Southern Railroad. This was the land about which this litigation arose. There [225] is evidence which shows that at the time the contracts wer'e made, and for some time thereafter, there existed in Louisville what is termed a “boom” in suburban lands. If the testimony is true, a demand was created for land like this. If such a demand existed, this property was properly situated, and was of proper amount, to meet it; for it is obvious that such a demand could not be met by small and disconnected tracts. The demand was not the purpose of establishing gardens or truck farms. It was for the purpose of development. It contemplated the utilization of large bodies of land, the expenditure of large sums of money in such ways as would render such lands, when subdivided, attractive to prospective purchasers of suburban homes. It contemplated that the cheap and easy means of access to the lands should be provided, or at least projected. Now, it does not matter how unreal, fictitious, fantastic, or visionary was the basis of this demand, how wild the dreams of speculative profits from which it sprung, if such projects of improvement existed, and if they created a real demand, that demand necessarily affected the market value of the property which answered its requisites. From the testimony in this case it would seem that the existence of this demand, extraordinary and unusual, was the reason why the vendors were able to make the contracts in question, and why some, at least, of the vendors hesitated to enter into those contracts. Under ordinary circumstances, and at ordinary times, the value of this property was what it would bring in the market fot garden, farm, and grazing purposes in lots to suit purchasers. In 1891, when these contracts were made and. broken, the property was neither held nor offered to purchasers for such purposes. Its value in the [226] market was its value for the most valuable purpose for which it was available. And so, during the existence of the boom, nobody considered it, situated as it was, and available as it was for suburban purposes, for the purposes of gardening, farming, or grazing. If this demand existed in the same measure at the date of the breach of the contracts as at the date of their execution, it was competent for the vendees to show its existence; if not to the same extent, then it was competent to show the extent to which it did exist. It was also competent to show that it continued to exist, after the date of the breach, for a reasonable length of time, because such testimony tended to show that, however unreal the cause of the demand, the demand itself was real and continuous. In this connection it was proper to show that -many companies were formed at or about the date of the breach for the purpose of purchasing, ' developing, and exploiting suburban property. The market value of property is gauged by the desires of the public; and the desires of the public are real, however foolish or fanciful may be their cause. Ti is incompetent, on the other hand, in-such a case to show as original testimony that, by the expenditure of large sums of money in improvement, in laying off streets, in building electric lines, etc., large amounts of money might be realized from a speculation; for such testimony is as to purely speculative profits.' And while such testimony might be properly admissible upon cross-examination, as showing the reason for the existence of the demand, it is not admissible as original testimony to show that there is a demand.
We think we have sufficiently indicated the general lines which we think proper as to the admissibility of testimony in such cases, and that they are abundantly sustained by authority. In the case of Boom Co. v. Patter[227] son, 98 U. S., 403 (25 L. Ed., 206), the appellant, a company authorized to construct booms on the Mississippi river, sought to condemn three islands lying close together, parallel to, and about an eighth of a mile from, the west bank of the river. The islands were extremely available for the purpose of forming a boom for catching and holding logs. The jury found a general verdict assessing the value of the islands at $9,355.33, but accompanied it by a special verdict fixing the value, aside from any consideration of its value for boom purposes, at $300. The court required the owner to reduce the verdict to $5,500. The supreme court, in an opinion by Mr. Justice Field, said: “Upon the question litigated in the court below, the compensation which the owner of the land condemned was entitled to receive, and -the principle upon which the compensation should be estimated, there is less difficulty. In determining the value of land appropriated for public purposes, the same considerations are to be regarded as in a sale of property between private parties. The inquiry in such case must be, what is the property worth in the market, viewed not merely with reference to the uses to> which it is at the time applied, but with reference to the uses to which it is plainly adapted; that is to say, what is it worth from its availability for valuable uses? Property is not to be deemed worthless because the owner allows it to go to waste, or to be regarded as valueless because he is unable to put it to any use. Others may be able to use it, and make it subserve the necessities or conveniences of life. Its 'capability of being made thus available gives it a market value which can be readily estimated. . . . The position of the three islands in the Mississippi fitting them to form, in connection with the. west bank of the river, a boom of immense dimensions, capable of holding in safety [228] over twenty millions of feet of logs, added largely to the value of the lands. The boom company would greatly prefer them to more valuable agricultural lands, or to lands situated elsewhere on the river; as, by utilizing them in the manner proposed, they would save heavy expenditures of money in constructing a boom of equal capacity. Their adaptability for boom purposes was a circumstance, therefore, which the owner had a right to insist upon as an element in estimating the value of his lands.” To the same effect, see the Furman St. Case, 17 Wend., 669; Goodin v. Canal Co., 18 Ohio St. 169, 98 Am. Dec., 95; Young v. Harrison, 17 Ga., 30. There is a line of cases in which a different rule has been applied- — not applicable here — where there was only one .possible purchaser for a particular purpose; as in the case of Five Tracts of Land of Cumberland Tp. v. U. S., 41 C. C. A., 580, 10 Fed., 661, in which the government desired to condemn the battlefield of Gettysburg for a park. Said the court in that case: “The question still is as to the market value, and-not its peculiar value to the single peculiar purchaser— the government of the United States. In other words, I repeat, the market value is to be ascertained; and, no matter what, may be the thing which enhances or diminishes the market value, the jury are entitled to have it, and consider it, but they are not entitled to consider this property as being of increased value because the United States is the purchaser for a purpose.” See, also, Alloway v. City of Nashville, 88 Tenn., 510, 13 S. W., 123, 8 L. R. A., 123. .
We come now to the consideration of the measure of damages. The vendors were entitled, first, to the difference, if any, between the value fixed by the contract and the fair market value, ascertained on the lines we have [229] indicated, at the date the contract was broken. They were further entitled to their reasonable costs and expenses, including commissions, if any, actually paid to real estate agents for effecting the sale of the land, which were necessarily expended in the effort to complete the sale. It will not do to say that, as they still have the land, if they are awarded the difference’ between the market value at the date of the breach of the contract and the contract price they are in statu quo as before the contract was made. They are entitled to be placed in statu quo as if the contract had been carried out, in which case they would not be required to expend any more money in effecting a sale. In other words, they are entitled to the- difference between what they would have realized from a sale made at the date of the breach and what they would have realized from the contract if it had been carried out. This is not the ordinary case of a suit for damages. The vendees have come into equity for relief against a forfeiture. That relief is granted them on terms. They must make the vendors entirely whole before they are entitled to the return of the forfeit money. They can not ask that the vendors return to them money which has been paid out for expenses. But they are not entitled to damages, in any event, above the amount fixed in the contracts. If the vendees had rested content after the declaration of forfeiture, it is not to be supposed that the vendors would have been permitted to recover a large amount, beyond that forfeiture. The penalty named in the contracts fixes the limit of recovery. Upon the return of the cases they should be transferred to the ordinary side of the docket, and proceed at law for the ascertainment of the damages.
[230] The judgments are reversed, and causes remanded, with ’directions for further proceedings consistent herewith.
Whole court sitting.
Chief Justice Paynter and Judges Guffy and O’Rear, dissenting.