154 P. 426 | Or. | 1916
Lead Opinion
delivered the opinion of the court.
“It seems to be generally held that, where a contract provides for the payment of stipulated damages for a particular breach, such stipulation is applicable only to the breach provided for; and, upon the abandonment or repudiation of the entire contract, the injured party, if*539 Ms actual damages are the greater, is uot limited to the stipulated damages, or vice versa, if the latter are the greater, he is limited to the actual damages.”
Other cases illustrating the principle are Oakland Electric Co. v. Union Gas & Elect. Co., 107 Me. 279 (78 Atl. 288); Muehlbach v. Missouri & K. I. Ry. Co., 166 Mo. App. 305 (148 S. W. 453); Bedford v. Miller, 212 Fed. 368 (129 C. C. A. 44); Ward v. Haren, 183 Mo. App. 569 (167 S. W. 1064); Murphy v. United States F. & G. Co., 100 App. Div. 93 (91 N. Y. Supp. 582); Gilette v. Young, 45 Colo. 562 (101 Pac. 766).
Reversed and Remanded "With Directions.
Rehearing
Denied March 14, 1916.
On Petition eor Rehearing.
(155 Pac. 1197.)
Mr. William M. Cooper and Mr. Ralph R. Duniway, for the petition.
Mr. Robert C. Wright and Messrs. Beach, Simon é Nelson, contra.
Department 2.
delivered the opinion of the court.
It will be remembered that this is an action by the plaintiff city against a paving contractor and his surety to recover damages for an alleged breach of his agreement, which is thus assigned in the complaint:
“That said defendant, Charles Masters, entered upon the performance of said contract with plaintiff,*541 but said defendants, and each of them, utterly failed and neglected to complete said contract in any manner by September 15, 1909, or otherwise or at all, and said contract remains uncompleted to this day, and it will take a good many thousands of dollars to complete this contract.”
On the trial in the Circuit Court the plaintiff sought to enforce as its measure of damages a diurnal forfeiture of $10, and tried its case on that theory. "We find in the petition for rehearing that:
“Upon the trial, plaintiff made no attempt to prove as its measure of damages the difference between the contract price and the greater cost of completing the contracts, because the lower court ruled, in accordance with the contention of plaintiff, that plaintiff was entitled to recover the $10 per day as liquidated damages.”
Generally, and on special verdicts submitted on the motion of the plaintiff, the jury found in favor of the defendants. The trial court set this verdict aside on the plaintiff’s application, and the defendants appealed. We held that the stipulated sum per diem was not the measure of damages to be applied to an abandonment of the contract, reinstated the verdict, and directed judgment in accordance therewith.
The essence of the petition for rehearing’ is that this court should not have terminated the action, but should have remanded the cause to the court below for a new trial so as to give the plaintiff an opportunity to prove general damages. On the faith of Sunnyside Land Co. v. Willamette Bridge Ry. Co., 20 Or. 544 (26 Pac. 835), Hoskins v. Scott, 52 Or. 271 (96 Pac. 1112), and State v. Portland Gen. Elec. Co., 52 Or. 502 (95 Pac. 722, 98 Pac. 160), counsel for the plaintiff argues that, the complaint having alleged the making of the contract
“Nominal damages means those damages that exist only in name and not in amount: Brennan v. Berlin Iron Bridge Co., 72 Conn. 386 (44 Atl. 727, 728). Nominal damages means no damages at all. In the quaint language of an old writer, they are a mere peg to hang costs on. They are such as are to be awarded*543 in a case where there has been a breach of a contract, and no actual damages whatever have been or can be shown: Stanton v. New York & E. R. Co., 59 Conn. 272 (22 Atl. 300, 303, 21 Am. St. Rep. 110).”
Much is said in the petition for rehearing about the effect the ruling upon this petition may have upon the city’s effort to collect from its taxpayers the funds to pay for the improvement. The questions suggested are coram non judice. All we have decided is that the per diem forfeiture was not a correct measure of damages in the case stated by the complaint, and that having presented that question alone to the Circuit Court, where the plaintiff had the opportunity to litigate the question of general damages, but did not, the Circuit Court was in error in setting aside a verdict of the jurors on the issue committed to them.
The petition for rehearing is denied.
Reversed and Remanded "With: Directions.
Rehearing Denied.