266 P. 726 | Wash. | 1928
The complaint in this case states a cause of action upon an oral contract for the payment of one hundred and thirty-five dollars. The answer denied liability upon the contract, and by way of cross-complaint sought damages against the plaintiff in the sum of eight hundred dollars. The trial was to the court without a jury and resulted in a finding that the plaintiff was entitled to recover one hundred and thirty-five dollars upon the contract and that the defendant's damages amounted to ninety dollars. The conclusion was that the plaintiff was entitled to a judgment of forty-five dollars, and from the judgment entered for this sum, the defendant appeals.
The appellant is a corporation engaged in the dairy business in the city of Spokane. It owned and used in its business a machine, sometimes called a cream pasteurizer, and at other times, a cultured butter milk ripener. This machine consisted of a copper lined vat covered with tin, in which operated, when it was in use, what is called an agitator which rotated upon a shaft. The tin covering the copper had worn away in places, and in December, 1926, the appellant contracted with the respondent to repair the machine by re-tinning the lining of the vat and the pipes of the agitator. The contract price for this was one hundred and thirty-five dollars. The re-tinning was properly done, but when the machine was tendered to the appellant, it refused to accept it, because the agitator, as it claimed, had been damaged in certain respects which it is not necessary here to detail. Before the re-tinning could be done, it was necessary to remove the agitator from the vat, and in removing it the appellant claims the damage occurred.
[1] The appellant first contends that, since the trial court found that the agitator of the machine was injured while in the plaintiff's possession through his *572
fault, there can be no recovery upon the contract because of failure of the performance thereof. Regardless of what the old rule was and what it may be in other jurisdictions, this court is committed to the doctrine that an action will lie to recover upon a contract where there has been a substantial performance, and that any damages that may have occurred by reason of the failure of a strict and complete performance may be offset against the amount due on the contract. Mortimer v. Dirks,
[2] It is next contended that the trial court committed error in taking the cost of repairs to the machine as the measure of damages. Whether the cost of the repairs would be the measure of damages depends upon whether the machine, after its injury and repair, would be worth as much as it would have been, had it at no time been injured. We think this contention is met by the case of Madden v. Nippon Auto Co.,
"If we are correctly advised the court based its ruling upon the case of Alexander v. Barnes Amusement Co.,
The present case falls within the rule that the cost of repairs would be the only element of damage, because the machine after repair, would be worth as much as if it had at no time been damaged. While the evidence was in dispute as to the cost of repairing the agitator, the record presents no reason why the finding of the trial court upon this question should be disturbed.
The judgment will be affirmed.
FULLERTON, C.J., HOLCOMB, and ASKREN, JJ., concur. *574