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should not permit attorneys, in the presentation of their client's case, to make statements not supported by the record, that it would seem almost unnecessary to repeat it here. We have likewise held that where counsel persists in violating this rule and recovers a verdict, he should be deprived of the fruits of victory thus earned by having the verdict set aside and a new trial awarded. If trial courts would rigidly enforce this rule and promptly set aside verdicts in cases where lawyers had, in argument over the objection of opposing counsel, made prejudicial statements not supported by the record, lawyers would cease offending in this particular. Laxity tends to encourage rather than discourage this practice of indulging in too wide a range on the part of counsel ir: the presentation of their cases. It should not be tolerated. When a lawyer makes a statement of fact wholly unsupported by the record, the trial court should, without waiting for objection to be made, promptly reprimand the lawyer and instruct the jury to disregard the statement, and where he regards it of such a prejudicial nature that it may improperly influence the jury, he should set aside any verdict obtained in favor of counsel so offending.

Lastly, it is insisted that the court erred in instructing the jury, and this point is well taken. The issue, as made by the pleadings and proof, was a narrow one. Appellee alleged that he entered into a contract with the Tool Company, by the terms of which he agreed to saw for it 50,000 ties at eight cents per tie, and that the Tool Company breached this contract by refusing to furnish. the timber out of which to saw the ties. The Tool Company alleged that, under the arrangement made with appellee, no definite number of ties were to be sawed, but that he was to saw into lumber and ties such timber as it furnished to him at his said mill.

While appellee, in his pleadings sought to recover of appellant the money which he had expended in moving his mill to the land from which the timber was to be cut and sawed and in moving it from the land after his contract was alleged to have been breached, his evidence fails to support the pleadings in this particular. He testifies unequivocally that he was to move the mill at his own expense to the land and do the sawing at eight cents per tie, and the item of $600, set up in his pleadings as damages sustained by him in moving his mill to and from the land should be dismissed from consideration.

Appellant, in its answer, pleaded that appellee, during a part of the time, could have procured other timber to saw and in this way have minimized the damages sustained by him but that he made no effort to do so, and considerable proof was introduced in support of this allegation. This plea, and the proof offered in support of it, should have been, rejected by the court, as it constituted no defense to the cause of action set out in the petition. In an action for damages growing out of a breach of contract of this character, it is not incumbent upon the party whose contract is breached to attempt to procure other employment of the same nature, with the view of minimizing the damage. In actions for breach of contract for personal services, the rule is well settled that it is the duty of one, asserting damage because of such breach, to minimize his claim for damages by seeking other employment of the same nature, for in such cases the contract cannot be performed for two different parties.

In Hollerbach & May Contract Co. v. Wilkins, 130 Ky., 51, this court had under consideration an action for breach of contract for the sale and delivery of a specific amount of broken rock. It was contended that the complainant should have minimized his damage, and in disposing of the question the court said:

"We do not mean to be understood as limiting the application of the principle of avoidance of damages to breaches of contracts for personal service; on the contrary, the rule is of much broader application, and it would, perhaps, not be going too far to say that the duty of those complaining of violations of contracts to minimize their damages as much as the exercise of reasonable diligence will accomplish is the general rule appeartaining to the right to recover damages therefor. The complainant should reduce his damages whenever the principle can be applied without sacrificing any substantial right. A fair illustration of the general application of the rule may be found in the supposition that the breach of the contract under discussion had been by appellee's refusing to deliver to appellant the stone contracted for. It would in the supposed case have been the duty of appellant to go out into the market and buy the stone, and it could only hold appellee liable for the difference between the contract price and what it had to pay for the stone on the market. This, from the very nature of the case, would cover all the damage it sus

tained by the breach of the contract. But the same principle is not applicable to the breach of contract complained of in this record. Appellee was entitled to enjoy the benefit of the profits of his contract with appellant, and, if he could have made as beneficial a contract with another, he was entitled to the benefits of that also. In other words, he was entitled to carry forward as many such contracts as he could make, and, if he succeeded in making more than one, he was entitled to both profits. Receiving the profits of one such contract would not tend to recoup his loss by reason of the breach of the other."

In Watson v. Gray's Harbor Brick Co., 3 Wash., 283, it was held that, where one who has contracted to do a specific piece of work at an agreed price is prevented from doing so by the wrongful act of the other party, the profit made by the contractor out of other jobs during the time he would have spent on the one in suit, had it been carried out, cannot be shown in mitigation of damages.

As stated, the rule requiring the avoidance of damages has no application to a case of this character. Had the contract required of appellee that he give the sawing his personal attention, he would then have been under the duty of minimizing his damage. Frazier v. Clark, 88 Ky., 260.

From a careful consideration of the pleadings and evidence in this case, we are of opinion that the contract under consideration does not fall within that class or line of cases which hold that it is incumbent upon the complainant in an action for breach of contract to minimize his damage by seeking other employment. There is nothing in the contract, either as set up by appellee or as pleaded by appellant, from which it could be fairly inferred that it was within the contemplation of the parties, when it was executed, that the said George Moore was to give the sawing his personal attention, or that he was prohibited from sawing for others during the time provided for its execution. Hence, the jury, in the instructions, should have been limited to a consideration of the question as to whether or not the contract was as alleged by appellee, if it was, its finding should have been for him; if, on the other hand, the contract was as alleged by appellant, its finding should have been for it. On the measure of damages, appellee's recovery should have been limited to the fair and reasonable

profit which the evidence showed he would have made, had he been permitted to carry out the contract.

Because of the improper argument of counsel and error of the court in instructing the jury, the judgment is reversed and cause remanded for further proceedings not inconsistent herewith.

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Golden v. Cornett, et al.

(Decided June 17, 1913.)

Appeal from Perry Circuit Court

Vendor and Purchaser-Contract-Construction-Sale-Option.— An agreement providing for the transfer of title to certain lands, at a. stipulated price, upon the ascertainment of the title and acreage, and payment of the purchase money, held to be a sale and not an option.

Vendor and

Purchaser-Contract-Rescission-Abandonment.— Acts of parties to a contract of sale of real estate, to constitute its abandonment, must be positive, unequivocal, and inconsistent with the continuance of the contract.

Vendor and Purchaser-Contracts-Condition Precedent-Rescission-Rights of Vendor.-A provision in a contract of sale that vendor shall furnish to the purchaser his title papers and assist in tracing title to the lands thereby sold, is a condition precedent which must be performed, or offered to be performed, before vendor is entitled to rescind for failure of purchaser to ascertain acreage and pay balance of purchase price.

Specific Performance-Contracts.-A purchaser having paid to the vendor a part of the purchase money, under a contract of sale of lands, and the vendor being in default as to conditions required of him by the agreement, is entitled to a specific performance of the contract of sale, even after expiration of the time limit for closing the contract.

S. M. WARD, W. W. BELEW for appellants.

WOOTEN & MORGAN for appellees.

OPINION OF THE COURT BY JUDGE LASSING-Reversing.

W. M. Cornett and his wife, Evaline Cornett, executed to John E. Golden the following contract of sale for a tract of land lying on Leatherwood Creek in Perry County, Kentucky:

"We, Wm. M. Cornett and Lina Cornett, his wife, hereby sell to John E. Golden, for the sum of $10 per

acre the land herein described and we agree to convey said land and the fee simple title thereto to him by deed of general warranty and free from any lien, defect or incumbrance. Lying on Leatherwood Creek in Perry County, Kentucky, and bounded:

(Here follows description of lands).

"We agree to furnish to said Golden without delay the title papers for said land, and to assist him in abstracting and showing the condition of the title to said land, and as soon as the title shall be shown to be perfect in us, by complete chain of documentary and recorded conveyance, the said Golden is to have the acreage ascertained by a competent surveyor, and when all this shall have been done we bind ourselves to execute and deliver to said Golden such deed as is herein described, and then he is to pay us the purchase price aforesaid per acre, and we will thereupon surrender possession of said land to him. We agree to do no damage to any of said land or anything upon it, and not to cut any timber upon it.

"It is agreed that the work in ascertaining the acreage, perfecting the title and making the conveyance shall be done before December 1, 1907."

No steps were taken by either party looking toward ascertaining the acreage or examining the title before December 1, 1907, the time specified in the contract.

In November, 1910, W. M. Cornett instituted suit in the Perry Circuit Court against John E. Golden in which he sought to have the writing or deed cancelled and adjudged of no binding force or effect. In May, 1911, Golden answered, and in addition to denying the material averments of the petition, sought to have the contract specifically performed. His answer was made a counterclaim. In February, 1912, he filed an amended answer and counterclaim and made it a cross petition against Evaline Cornett, the wife of W. M. Cornett, and the Ford Lumber & Manufacturing Company. In this amended answer, in addition to denying the material averments of the petition, he alleged that at the time of the execution and delivery of the contract of sale to him, set out above, he paid to W. M. Cornett the sum of $200 as a part of the purchase price of said land; that neither W. M. Cornett nor Evaline Cornett, his wife, had at any time furnished or offered to furnish to him their title papers to said land and had not offered to assist him in abstracting the title or in showing the correct number of acres in said land;

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