City of Rainier v. Masters

• Decision Date: 14 March 1916
• Parties: CITY OF RAINIER v. MASTERS ET AL.
• Court: Oregon Supreme Court

155 P. 1197

79 Or. 534

CITY OF RAINIER v. MASTERS ET AL.

Supreme Court of Oregon

March 14, 1916

Department 2.

Appeal from Circuit Court, Multnomah County; R. G. Morrow, Judge.

On petition for rehearing. Denied.

For former opinion, see 154 P. 426.

R. C. Wright, of Portland, for appellant Masters. Beach Simon & Nelson, of Portland, for appellant United States Fidelity & Guaranty Co. W. H. Cooper, of St. Helens, and R R. Duniway, of Portland, for respondent.

BURNETT J.

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, 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. Bridge Ry. Co., 20 Or. 544, 26 P. 835, Hoskins v. Scott, 52 Or. 271, 96 P. 1112, and Oregon v. Gen. Elec. Co., 52 Or. 502, 95 P. 722, 98 P. 160, counsel for the plaintiff argues that, the complaint having alleged the making of the contract and a breach thereof, enough is stated to compel the allowance of nominal damages at all events.

It is true as a general principle that, if an agreement is stated and a breach thereof is alleged, in the absence of anything else that measure of indemnity will be awarded. We note that all the precedents cited by the plaintiff on the petition for rehearing are those where a contractor has undertaken to recover upon an agreement without having shown complete performance. The instant case is not like those. The city essays to recover damages. It not only alleges the making of the contract, but it further states that the contractor entered upon the performance thereof. In other words, by inference at least it advances the proposition that the defendants had done something of the work beneficial to the plaintiff which would amount to a mitigation of damages. This construction is justified by the principle that after verdict the pleading will be construed most strongly against the defeated pleader. The complaint in that respect is entirely consistent with the hypothesis that the contractor had completed his undertaking to such an extent that the city would derive profit therefrom although full performance of his stipulation was not accomplished. In such an action as this, it would be competent for the defendants to show such benefit to the city, and so lessen the claim for general damages and effectually overcome mere nominal damages which would arise from a technical breach of the contract. We quote from 5 Words & Phrases, p. 4816:

"Nominal damages means those damages that exist only in name and not in amount. Brennan v. Berlin Iron Bridge Co., 72 Conn. 386, 44 A. 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 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. N.Y. & E. R. Co., 59 Conn. 272, 22 A. 300, 303, 21 Am. St. Rep. 110."

The complaint is not predicated upon the allowance of nominal damages. The admission therein that the defendant contractor entered...