burden of showing mitigation is on party raising issue
How later courts described this case
- burden of showing mitigation is on party raising issue
- “The burden of showing mitigation of damages is on the party raising the issue. Thus, it was up to appellants to establish the salvage value of the property appellee removed from the restaurant.”
- “the refusal to grant [an instruction] is not grounds for reversal when the charge as given, although in a more general form, fully informs the jury as to the law”
- proof of fraud and deceit will support punitive damage award since they necessarily encompass malice
Written by the judges who cited it.
The opinion
PRYOR, Associate Judge,
concurring:
I concur in the affirmance of the judgment for appellee.
I have some concern with respect to the measure of damages. The jury found ap-pellee was a leaseholder whose right of first refusal to purchase was breached. The instruction given, and approved here, is that damages should be measured by “the fair market value of the property at the time of the loss.” Thus the jury was asked to measure the leasehold interest as a property right.
Under the circumstances of this case, there being no alternative instruction offered by counsel for appellants at trial, we have found no error.
I would note that this may not be the only way to measure the harm. It is conceivable, to me at least, that the jury could be instructed that where a right of first refusal to purchase is denied, the holder of the right may recover reasonable compensation for injuries which are shown to be the foreseeable result of the breach. See Schoonover v. Kahn, 377 S.W.2d 535, 539 (Mo.App.1965). Restatement of Contracts § 330 (1932).