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HIRAM C. EASTLAND, ET UX. v. GEORGE H. GREGORY

AUGUST 17, 1988

HIRAM C. EASTLAND, ET UX.
v.
GEORGE H. GREGORY, ET UX.



BEFORE HAWKINS, P.J., ANDERSON AND GRIFFIN, JJ.

HAWKINS, PRESIDING JUSTICE, FOR THE COURT:

Hiram C. Eastland and his wife Gail Eastland have appealed from a judgment rendered against them in the amount of $15,523 in the circuit court of the First Judicial District of Hinds County. We find only that portion of their assignment of error that the damages awarded were excessive has merit, and accordingly affirm the judgment of the circuit court in the amount of $12,500, and reverse and render on the remaining balance.

FACTS

 On March 3, 1984, Hiram C. and Gail Eastland entered into a contract with Mrs. Dorothy W. Gregory for the purchase of the homestead residence of George H. and Mrs. Gregory, the title to which was in her name. The purchase price was $185,000 with the Eastlands paying $5,000 in earnest money.

 The sale was not consummated and the Gregorys sued the

 Eastlands.

 Following trial the jury found the Eastlands had breached the contract and returned a verdict for Mrs. Gregory in the amount of $15,523.

 The Eastlands have appealed.

 We only address their second assignment of error, that the award of damages was excessive, contrary to the evidence, and in direct disregard of the instructions of the court. The Eastlands do not claim there was not a jury issue as to whether they breached the contract.

 At trial the Gregorys testified without objection that they sold the house for $175,000. No records were produced of the sale and even the name of the purchaser was not mentioned.

 As to earnest money, the contract provided:

 8. DEPOSIT. Purchaser has deposited with Broker $5,000.00 as earnest money. The same to be applied to the cash down payment on closing of this transaction . . . and if the Purchaser fails to perform the terms of this contract, 1/2 of said earnest money to be retained by the Broker, provided that the Broker's portion of any such forfeiture shall not exceed the commission he is entitled to under this contract, and Seller shall have the option of treating the remaining 1/2 of said earnest money as liquidated damages for said breach; or, if he deems his actual damages to be in excess thereof, he may institute suit therefor in any court of competent jurisdiction, giving credit on said damages for said earnest money . . .

 Out of this $5,000 the real estate agent retained $2,500 and the ...


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