The petition set out a cause of action and the evidence authorized a verdict for the plaintiff. The court properly charged the measure of damages. The court did not err in overruling the motion to dismiss the case, the motion to grant a nonsuit, and the motion for new trial.
DECIDED NOVEMBER 18, 1942. L. D. Truesdel brought suit against Charles E. Nash to recover $680 as damages alleged to have been sustained as the result of the defendant's breach of a contract with the plaintiff. It appeared from the petition as amended that the plaintiff and the defendant entered into a contract on September 3, 1940, whereby the defendant agreed to sell, and the plaintiff agreed to purchase, a "house to be built on lot 18, block C of Randall Hts., according to plans and specifications marked `home for Mr. and Mrs. Lem Truesdel,' as submitted to and approved by FHA;" that the plaintiff agreed to pay $3600, $400 on the signing of the contract and the balance upon delivery by the defendant to the plaintiff of a deed conveying to him good and sufficient title to the property described; that this balance of purchase-price was to be paid to the defendant by the plaintiff's agreeing to "secure an FHA insured mortgage in the amount of $3200 payable approximately $21.50 per month." It was contended by the plaintiff that the defendant failed and refused to perform the contract, in that he failed and refused to erect the house on the premises as provided in the contract.
The defendant denied liability and alleged that the plaintiff had failed to comply with the agreement relative to the payment of the purchase-price, and because thereof he had not erected the house. He contended that the plaintiff had failed to procure the "FHA insured mortgage in the amount of $3200" as required in the contract of sale, and that the house had not been erected by the defendant because there had been a mutual rescission of the contract, and the plaintiff had released the defendant from any obligation to build the house and perform the contract.
The case proceeded to trial, and after the plaintiff had introduced evidence the defendant moved for a nonsuit and also moved to dismiss the petition. The court overruled these motions and the *Page 377 defendant excepted pendente lite. The trial resulted in a verdict for the plaintiff. The defendant moved for a new trial. The judge overruled the motion and the defendant excepted. 1. The court did not err in overruling the motion for a nonsuit and in refusing to dismiss the petition as amended. A motion for a nonsuit is not erroneously denied and a new trial will not be granted where the entire evidence authorizes a verdict for the plaintiff. W. A. Railroad Co. v. Landers, 142 Ga. 774 (83 S.E. 788); Duncan v. Redd, 14 Ga. App. 306 (80 S.E. 726). It did not appear from the petition as amended that there had been a mutual rescission of the contract and that therefore there was no obligation on the part of the defendant to erect a house. The petition was not subject to dismissal because it appeared therefrom that there was no liability on the part of the defendant for the damages sued for. The evidence was in sharp conflict. Under the evidence for the plaintiff the jury were authorized to find that the plaintiff did not release the defendant from his agreement to erect the house; that the plaintiff complied with his agreement in the payment of the purchase-money in that the payment made thereon and the FHA mortgage loan secured by him, while not in strict conformity with the contract, were made by the plaintiff with the defendant's approval, and were accepted by the defendant as a compliance under the contract. The jury were also authorized to find that while the plaintiff procured some one else to build the house and obtained the deed to the lot on which the house was erected from the defendant's vendor, it appearing that the defendant did not own the property when he contracted to sell it to the plaintiff, but only had a contract to deed the same, he did not thereby rescind the contract and release the defendant had failed to perform the contract and erect the house. The evidence authorized a verdict for the plaintiff.
2. The court charged the jury as follows: "If, however, you determine the plaintiff is entitled to a verdict, you would go a step further and take up the question of damages, and in that connection I charge you the plaintiff would be entitled to recover whatever *Page 378 sum you find to be the difference between the contract price, after allowing for a reasonable market value of the lot, and the fair cost price to the plaintiff to complete the contract, that is building the house, if you find there was a difference exceeding the contract price." This charge was not error for any of the reasons assigned. The correct measure of damages was not, as contended by the defendant, the difference between the contract price and the market value at the time and place of the alleged breach of the contract. The contract sued on was not an ordinary executory contract for the sale of real estate. It was a contract whereby the defendant agreed to sell to the plaintiff a lot and to erect thereon a house, according to certain plans, for a stated purchase-price to be paid in the manner specified therein. The suit is for the breach of this contract by the failure to erect the house, whereby the plaintiff was forced to have the house erected by another. The defendant was not the owner in fee simple of the real estate but only held a contract to sell the real estate, and the plaintiff, on the defendant's failure to erect the house after the plaintiff had made the cash payment to him, obtained a deed from the owner of the fee and procured another person to erect the house. The plaintiff's damages would be the actual damages sustained by him. The correct measure of damages would not be the difference between the contract price and the market price at the time and place of the alleged breach of the contract by the defendant.
3. The verdict for the plaintiff being supported by the evidence and no error of law appearing, the court did not err in overruling the motion for new trial.
Judgment affirmed. Sutton and Felton, JJ., concur.