82 P. 562 | Cal. Ct. App. | 1905
This action is based upon an alleged breach of contract entered into between plaintiff and defendants, in which findings and judgment went for plaintiff. This appeal is by defendants from the judgment supported by a bill of exceptions.
The defendant corporation on March 19, 1898, entered into an agreement in writing by which it obligated itself to furnish and deliver to plaintiff for the period of five years, *512 during the irrigating season of each year, and at a point to be designated by the plaintiff, on lots seven, eight, and nine, block twenty-five, Rancho San Bernardino, a continuous service of twenty-four hours of electric power, in an amount not less than ten nor greater than twenty horse-power, for the sum of $6.50 per horse-power per month, it being agreed that plaintiff should have a reasonable time in which to purchase and place in working order necessary machinery to utilize the power for the pumping of water from its wells, situate on the lots before mentioned, before the contract should become operative for the first year. The defendant corporation commenced the performance of such agreement, but in December, 1900, destroyed the connections between its plant and plaintiff's pumping machinery, and thereafter refused to furnish any power whatever, and did not furnish power during the irrigating seasons of 1901 and 1902, but refused so to do.
The court found that the plaintiff was required to, and did, for the ten and one half months comprising the irrigating season of the two years mentioned, purchase of the only parties from whom such power was obtainable, and at the cheapest rate, power with which to operate its pumps, at a monthly cost of $86 in excess of the cost to plaintiff under said contract with defendant; the aggregate of which excess was $903, for which judgment was rendered.
Upon the trial the court below, under a general averment of damages, admitted evidence, against the objections of defendant, tending to show that seventy inches of water was necessary to irrigate the lands described in the complaint and upon which was situate the pumping plant. This proof of such use of water, its extent and necessity, was not essential in establishing plaintiff's rights under the contract, nor, perhaps, under the allegations of the complaint, admissible.
But it is apparent from the findings that nothing was considered and nothing entered into the judgment by way of special damages, and the error was not therefore prejudicial.
The court further admitted evidence tending to show that plaintiff, after the breach, in order to obtain the power agreed to be furnished to it by defendant, entered into an agreement in writing with another power company, from which it obtained the power for the delivery of which defendant *513
was in default; and the full execution thereof, and the payment for such power, was established. For the excess cost over that which would have resulted to plaintiff had defendant performed its contract, and for this excess cost, and nothing else, the court rendered judgment. Appellant insists that such evidence was inadmissible under the general ad damnum clause of the complaint. The contract set out in the complaint was in reference to the sale and delivery of personal property. The thing of which there may be ownership is called property under our code. (Civ. Code, sec.
"Damages which necessarily result from the act complained of are denominated general damages, and may be proved under thead damnum clause. . . . The defendant must be presumed to be aware of the damages which necessarily result from the act done, and cannot be held to be taken by surprise." (Treadwell
v. Whittier,
The proposition advanced, that a party may disregard his obligations and confidently assume that the only consequence thereof is a nominal damage, and that such nominal damage is all that necessarily follows such violation and all that can reasonably be anticipated as a penalty, should have no support.
We find no error in the record, and the judgment is affirmed.
Smith, J., and Gray, P. J., concurred. *515