Gilmartin v. Stevens Inv. Co.

Decision Date21 September 1953
Docket NumberNo. 32309,32309
Citation261 P.2d 73,43 Wn.2d 289
CourtWashington Supreme Court
PartiesGILMARTIN et al. v. STEVENS INV. CO., Inc.

Arthur H. Hutchinson, Kenneth L. Johnson, Seattle, for appellants.

Russell B. Johnson, Oak Harbor, for respondent.

HAMLEY, Justice.

Did the trial court, after finding that plaintiffs had sustained substantial damage, err in allowing them nominal damages only, and in denying them a new trial on the question of damages?

On November 22, 1948, Marie Gilmartin and her husband, A. F. Gilmartin, purchased from Stevens Investment Co., Inc., a certain tract of land in Island county, state of Washington. Twenty months later the Gilmartins brought this action against the vendor. They alleged that Stevens Investment Company had breached covenants of the real estate contract which obligated the vendor to construct certain sewer facilities and deliver water to the premises for household and irrigation purposes. Plaintiffs prayed for specific performance and damages in the sum of ten thousand dollars. Other defendants named in the complaint may be disregarded, as their dismissal from the action is not here questioned.

The case was tried to the court sitting without a jury. The measure of damages established for the case, as suggested by defendant, acceded to by plaintiffs, and adopted by the court, was the difference in the market value of the property with the water plaintiffs were obtaining from defendant, and the market value of the property were they obtaining the water agreed to be furnished under the contract.

Gilmartin testified that the value of their property, if they obtained the water agreed to be furnished under the contract, would be $14,000. He gave the value with the water they were obtaining as $5,000. The testimony of Mrs. Gilmartin was the same.

R. T. Minnick, a real estate man from Mulkilteo, testified that in his opinion the market value of the property with adequate water supply would be $9,388. He then testified:

'Q. Assuming that the amount reasonable for household needs is ten gallons per minute, and the house only gets two to three gallons per minute, what would be the value of that house and lot? * * * A. I would say that that would depend upon the buyer, and the buyer's needs, the number in the buyer's family. I myself am not qualified to answer further than that, because it has never arisen in my experience before.'

Horace Flynn, of Clinton, a builder experienced in real estate values, who helped Mr. Gilmartin finish the house, valued the property with adequate water supply at $13,000. He was then asked what it was worth with the present water supply, and replied: 'That's a hard answer to make. Oh, fifty-five hundred.' Under cross-examination he was asked:

'Q. Was that figure you just stated, Mr. Flynn, more or less of a guess? A. No, not necessarily, no. That is my opinion.'

R. A. Luhn, a real estate man from Langley, testifying for respondent, gave the value of the house with average water supply at between $6,000 and $6,500. He was not asked, by either counsel, the value with the present water supply.

For convenience we shall recapitulate the testimony of the witnesses with regard to value.

                                  With               Without
                                Adequate             Adequate
                                 Water                Water
                                 Supply               Supply
                                --------             --------
                Mr. Gilmartin    $14,000               $5,000
                Mrs. Gilmartin    14,000                5,000
                R. T. Minnick      9,388             ________
                Horace Flynn      13,000                5,500
                R. A. Luhn         6,000  or $6,500  ________

It should be noted that Mr. Luhn's testimony was with regard to average rather than adequate water supply.

At the close of the trial on March 25, 1952, the court orally ruled that defendant had fulfilled its obligation as to construction of sewer facilities. As to the asserted obligation to supply water, the court held that defendant had covenanted to supply a reasonably adequate quantity of water for household uses. The court further stated that this obligation had not been fulfilled 'even to the extent of not having enough to enable the wife to swallow a pill.'

The trial court held that specific performance would not be a practicable remedy in a case of this kind. Regarding the allowance of damages, the court orally ruled as follows:

'I would conclude that plaintiffs have known some substantial damage, arising from the failure of the defendant to perform. I am quite at a loss to find in testimony and evidence that I am willing to accept, what is to be said to be the extent or amount of damage, as naturally and reasonably to have been anticipated to follow the failure of defendant to afford water as I have indicated it was obligated to do for household uses.

'I am not ready to accept the testimony of the two plaintiffs as indicative of what would be the actual depreciated value of their property--the difference between what it is worth as it actually is and as water is provided for its use, and what it would be if water were thus provided. The testimony of realtors does not afford me any guidance. As I view their testimony, this is an unusual case. * * *

'These realtors who testified apparently face the same difficulty that confronts me, and they were not willing even to venture an opinion as to what would be the value of this property as water supply is. They had opinion, which I assume was honest, as to what the value of the property would be, if water supply were adequate for household uses, at least. And at this time I see no other possible disposition for me to make of this case than that these plaintiffs shall know recovery of nominal sum, in the absence of proof that is substantial and to be accepted as to actual damage.

'I assume 'nominal damages' is a sum anywhere from $1.00 to $100.00, perhaps. I fix it at $25.00.'

Counsel for plaintiffs immediately argued against the allowance of nominal damages only, but the court adhered to its announced view.

When findings of fact and conclusions of law were thereafter presented to the court on May 8, 1952, the question of whether plaintiffs should be restricted to nominal damages was reargued. The court again adhered to its oral decision, and the findings of fact entered on that day include the following paragraphs:

Finding No. VII: '* * * That the water facilities installed have not delivered to the residence of the plaintiffs constructed upon the land described in the contract sufficient water for domestic uses, and as a proximate result, the plaintiffs have suffered some substantial damage.'

'Finding No. IX: 'That the amount of the damage sustained by the plaintiffs through the failure of the defendant to supply sufficient water, as naturally and reasonably to have been anticipated by the parties, is incapable of determination under the evidence presented in the trial of this cause. The Court is not willing to accept the testimony of the parties plaintiff or other witnesses as to the amount of depreciation in the value of the property occasioned by the defendant's failure to perform its undertaking.'

Finding No. XI: 'In the absence of satisfactory proof of the actual damage sustained by plaintiffs, they are entitled to nominal damages in the amount of $25.00 and taxable costs.'

On June 5, 1952, the question was argued for a third time in connection with plaintiffs' motion for a new trial. The court held to its previously-announced view and denied the motion. The judgment, entered that day, awarded plaintiffs twenty-five dollars. They appeal.

In Bellingham Bay & British Columbia R. Co. v. Strand, 4 Wash. 311, 314, 30 P. 144, 145, we defined the term 'nominal damages' as follows:

'* * * Nominal damages never purport to be real damages. They are awarded where, from the nature of the case, some injury has been done, the amount of which the proofs fail entirely to show. * * *'

The same general definition, though somewhat amplified, is to be found in 1 Restatement of Contracts 502, § 328; 1 Sutherland Damages (4th ed.) 31, § 9; New York Law of Damages 228, § 128; Mayne on Damages (11th ed.) 2; McCormick on Damages 85, 91, §§ 20, 23.

The core of respondent's argument is that damages must be proved with reasonable certainty, and that this court should not overturn the trial court's 'finding' that appellants failed to meet that standard of proof.

What is 'reasonable' certainty depends largely on the extent to which the particular damage in issue is susceptible of accurate proof. Where, for example, a plaintiff, in attempting to prove loss of profits, fails to produce available records relevant to that question, he fails to meet this standard of reasonable certainty. National School Studios, Inc., v. Superior School Photo Service, Inc., 40 Wash.2d 263, 242 P.2d 756. On the other hand, the precise amount of damages need not be shown where the circumstances do not permit of careful measurement. Ball v. Stokely Foods, Inc., 37 Wash.2d 79, 221 P.2d 832. See, also, Jones v. Shell Oil Co., 164 Wash. 543, 3 P.2d 141.

The agreed measure of damages in the instant case,--difference in the market value of the tract with and without the promised water--is obviously not susceptible of exacting proof. It can be proved only by opinion testimony as to values, given by witnesses competent to express an opinion on the subject.

It should further be observed that the standard of 'reasonable certainty' is concerned more with the fact of damage than with the extent or amount of damage. Larson v. Union Investment & Loan Co., 168 Wash. 5, 10 P.2d 557; Dunseath v. Hallauer, 41 Wash.2d 895, 253 P.2d 408; Gaasland Co., Inc., v. Hyak Lumber & Millwork, Inc., Wash., 257 P.2d 784; 1 Restatement of Contracts 515, § 331, comments b to d; 78 A.L.R. 858, annotation.

The case before us does not involve any question as to the fact of damage, but only as to its amount....

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