Calumet Motor Sales of Hammond, Inc. v. M. F. Cooper Builders, Inc.

(Concurring Opinion.)

Wickens, P. J.

— While I concur completely with the majority opinion, there is a facet of this case which calls for additional consideration.

Appellant avers there “was a total failure of proof in the trial court on the question of damages apart from the $200.00 deposit.” In effect, he says there was nothing to show that appellee was damaged by the breach of the contract.

This poses the problem of determining what proof is required to establish damage by breach of the particular contract involved here.

*629The contract in question is not the same as an agreement of outright purchase for cash. For failure to deliver the property purchased as agreed, in an outright purchase case, the plaintiff may recover the enhanced cost of procuring the property elsewhere. Vickery, et al. v. McCormick (1889), 117 Ind. 594, 598, 20 N. E. 495; The Piano Manufacturing Co. v. Kesler (1896), 15 Ind. App. 110, 114, 43 N. E. 925.

By this agreement the appellee had two purposes or possible advantages. He was disposing of his old car for the equivalent of $4,000. He was also obtaining a desired new car for a difference of $2,162.

So here the plaintiff-appellee might have procured a 1962 Lincoln Continental automobile elsewhere and maintained this suit for the enhanced cost. That hypothesis assumes a willing dealer who would also be willing to accept appellee’s 1960 Lincoln automobile as part of the consideration.

There appears to be no authority in Indiana holding that plaintiff must make an effort to obtain a like agreement in order to establish damage or as a condition precedent to suit.

Where a contract involved personal services, the rule requires the non-defaulting party to be charged with such sums as are earned or by reasonable diligence might have been earned elsewhere. 9 I.L.E., Damages, § 131, p. 289.

However, in actions for breach of contracts other than those for personal services, the wronged party is entitled to be put in the same financial position that he would have been in had there been no breach. 22 Am. Jur., 2d Damages, §§ 46, 47, pp. 73, 74. 9 I.L.E., Damages, § 126, p. 382.

The appellee was entitled as damage to recover his actual loss in disposing of his used car. He elected not to claim or prove any damage by reason of inability to obtain a 1962 Lincoln automobile for $6,800.

Without attemping to say that this was the only way appellee might proceed in event of breach, I would hold that the proof was sufficient to show appellee’s financial loss on that *630aspect of the contract which apparently advantageously disposed of appellee’s old car. Had he desired to show damage in his inability to obtain the new car he wanted at the agreed price, that course would also have been opened to him. Nor would I deprive appellant from the right to prove the damages were less than claimed by evidence that the identical provisions of the contract were available for a like or similar exchange at other sources. No effort was made by appellant to so minimize the damage.

I join in affirmance of the judgment.

Note. — Reported in 221 N. E. 2d 438.