126 P. 12 | Or. | 1912
Lead Opinion
delivered the opinion of the court.
“There was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions, and also other evidence tending to the minimization of such damages.”
Similar statements as to the existence of evidence apropos of the questions involved in. the requested charge are made in other parts of the paper. Attached to the bill of exceptions is a transcript of 236 pages of stenographer’s report of the oral testimony, together with interpellations of counsel, the remarks of the court, and objections to the introduction or exclusion of testimony, and the like. The bill of exceptions proper closes with a certificate of this purport:
“The evidence hereto attached and the exhibits hereby*106 presented are hereby made a part hereof, and was and is all of the evidence presented on either side in the above-entitled cause and court. Wherefore, due notice of the bill of exceptions having been given, and counsel having been given an opportunity to be heard, and the court being at this time fully advised in regard thereto and finding the same to be correct: Now, therefore, the foregoing statement, and the evidence and exhibits hereto attached and made a part hereof, is hereby settled and allowed as a full, true, and correct bill of exceptions, and is made a part of the record of this cause. Dated June 15, 1911.”
Signed by the presiding judge. No exhibits are in fact physically attached to the bill of exceptions, or to the transcript of the testimony. Sundry papers accompany the record to this court; but they are not identified as having been used in the trial in the court below. For the purposes of this case, however, we do not deem these exhibits to be an essential part of the bill of exceptions.
“During the progress of the trial, I admitted testimony to show that the loss to the plaintiff might have been minimized by his taking a saloon in another part of the city. Since that time, I have been convinced that I was in error, and I now tell you to put that out of the case, and if you come to that part of the case you will not consider the minimizing of damages at all. It is not properly in the case. I thought it was proper when I admitted that testimony, because if he could have gone elsewhere and minimized his damages it would not have accrued to his damage.”
The exception of the defendant having been allowed to this charge, he now complains of it as error. It is a general rule that if a party who suffers by the breach
Plaintiff cites many cases where a purchaser under an executory contract for the sale of personal property has refused to take the property when offered at the agreed price, and which hold that, inasmuch as the seller has the right to dispose of as many goods as he can to as many people as he can, and is entitled to the benefit of his contract with the defendant, with the result that he can recover the difference between the contract price and the cost of production, the rule under discussion does not apply. Those precedents could be applied to this case if the defendant had contracted to purchase from the plaintiff so many barrels of beer at such a price, and had declined to receive or to pay for them when tendered. It would be no answer in such a case to say that the plaintiff might have hunted other customers for his beer; but that is not this case. In the most favorable aspect
“Whether or not there has been in this case shown such a state of facts as will entitle the plaintiff to recover punitive or exemplary damages is a question entirely for your determination. You will look the testimony over with care; and if there is any evidence in this case that justifies you in giving it, why, you give it, and in the giving of it you are only to be governed by wise and sound discretion.”
The bill recites that the defendant excepted to this instruction, and the exception was allowed. Exemplary damages are allowed in proper cases to punish the defendant for the element of wantonness or maliciousness in inflicting the injuries of which the plaintiff complains. There are many degrees of difference between one who, without any shadow of right or claim upon the property, should enter upon it and tear down the - building to the
The judgment is reversed. Reversed.
Rehearing
Decided October 8, 1912.
On Petition for Rehearing.
(126 Pac. 991.)
delivered the opinion of the court.
“During the progress of the trial I admitted testimony to show that the loss to the plaintiff might have been .minimized by his taking a saloon in another part of the*112 city. Since that time I have been convinced that I was in error, and I now tell you to put that out of the case, and, if you come to that part of the case, you will not consider the minimizing of damages at all. It is not properly in the case. I thought it was proper when I admitted that testimony, because, if he could have gone elsewhere and minimized his damage, it would not have accrued to his damage.”
In connection with that part of the charge the bill of exceptions recites that “there was, as will more fully appear in the evidence hereto attached and hereby made a part hereof, such evidence as the court referred to specifically in the above instructions,' and also other evidence tending to the minimization of such damages.” For the first time, it is now argued by plaintiff’s petition for a rehearing that the opportunity, if any there was, which he had to procure other quarters for his business whereby he might have lessened his damage, constituted new matter which must be averred by defendant if he would urge it in mitigation of damages. Conceding this contention, and, for the purposes of this case, modifying the former opinion in that respect, and without intimating that the offer of another building would be admissible in evidence unless made at the time of or subsequent to the eviction, yet the instruction referred to erroneously goes too far, in that it directs the jury not to “consider the minimizing of damages at all.” That language was tantamount to taking from the jury the whole question of the amount of damages and directing them to find on that point according to the allegations of the complaint. The plaintiff alleged damages in certain amounts and these averments were traversed by the answer. It was possible, under the general issues thus formed, for the defendant to introduce testimony which might lessen the amount named by the plaintiff, and the circuit court has informed us that there was such evidence. Under, such circumstances, the instructions in effect told the jury that, if they came to the
“Whether or not there has been in this case shown such a state of facts as will entitle the plaintiff to recover punitive or exemplary damages is a question entirely for your determination. You will look the testimony over carefully, and, if there is any evidence in this case that justifies you in giving it, why, you give it, and in the giving of it you are only to be governed by a wise and sound discretion.”
The petition for rehearing argues thus:
“When a verdict is made up of two elements, one compensatory and the other exemplary damages, and the amount of the verdict given can be accounted for as compensatory damages, if the ruling of the court as to compensatory damages is correct, and as to exemplary damages incorrect, the court will presume that the jury followed the court’s correct instructions and found only compensatory damages.”
With the argument thus quoted as a major premise the petition lays down a minor premise, in substance, that taking from the total of $10,000, demanded in the complaint, the $3,000, asserted to be punitive damages, there would be left $7,000, whereas there was a general verdict for plaintiff for only $6,316.. This last amount, it is argued, is made up as follows:
Loss of profits.$5,333.00
Loss of rent from sub-tenants. 533.00
Damage to stock of goods. 450.00
Total $6,316.00
With the modification above noted, the. former opinion will stand, and the petition for a rehearing is denied.
Reversed: Rehearing Denied.