Sweet v. Johnson

• Decision Date: 15 April 1959
• Citation: 337 P.2d 499,169 Cal.App.2d 630
• Court: California Court of Appeals Court of Appeals
• Parties: Rowland F. SWEET, Plaintiff and Appellant, v. Harvey F. JOHNSON, Jr., Defendant and Respondent. Civ. 9565.

Page 499

337 P.2d 499

169 Cal.App.2d 630

Rowland F. SWEET, Plaintiff and Appellant, v. Harvey F. JOHNSON, Jr., Defendant and Respondent.

Civ. 9565.

District Court of Appeal, Third District, California.

April 15, 1959.

Order April 28, 1959.

Kneeland H. Lobner, Sacramento, for appellant.

Dwyer, King, Price & Mering, Sacramento, for respondent.

WARNE, Justice pro tem.

This is a judgment roll appeal from a judgment in favor of defendant in an action to recover damages for breach of contract.

It appears that on February 13, 1956, plaintiff and defendant entered into two separate contracts, identical in form, covering the development of two parcels of real property. Under the terms of said contracts plaintiff agreed to subdivide the property, arrange for and supervise the construction of lot developments, provide residential plans, construct homes on each improved lot, and arrange for and supervise the selling of said homes. In addition, plaintiff agreed to arrange for the financing for improving the lots, the construction of the homes, and the sale of the mortgages. Defendant agreed to finance the subdivision of the property and the construction and sale of the homes. Said contracts further provided that the plaintiff's compensation was to be equal to one-half of the net profit realized from the development of the two parcels of real property.

It also appears from the findings 'that at the time of the execution of the contracts, certain work had already been accomplished in connection with the subdivision of the [two tracts of land] * * * and that following the execution of said contracts plaintiff made an investigation to ascertain what steps had already been accomplished * * * with reference to completing the engineering work and preparing the final subdivision maps; that in addition, plaintiff made certain preliminary inquiries with reference to securing financing for the construction of the lot developments and the construction of the homes, securing water service for the properties and engaging a sales agency to handle the sale of the homes.'

Prior to the completion of the engineering work, and before construction work had commenced, i. e., on May 13, 1956, defendant, without legal justification, breached said contracts, by notifying plaintiff in writing that he was cancelling the same because he could not afford to develop the property or enter into contracts to construct residences. The trial court found 'that the evidence offered by plaintiff to establish that the properties would be subdivided and that the homes would be constructed and sold at a profit is uncertain, contingent and speculative'; and that '* * * there exists no operating experience which would permit a reasonable estimate of the income and expenses of the proposed development and thus there is no provable data upon which to base a determination of the prospective profits, if any, to be realized therefrom.'

Although the trial court found that the two contracts were valid and that defendant had wrongfully breached them, it nevertheless concluded that plaintiff had not been damaged as a result of the breach of said contracts. Judgment was entered in favor of defendant and he was allowed his costs in the amount of $307.04.

Plaintiff first contends that the conclusion of law that plaintiff suffered no legal damage is erroneous and cannot be upheld, since an award of nominal damages should have been made in favor of appellant. This contention is well taken.

A plaintiff is entitled to recover nominal damages for the breach of a contract, despite inability to show that actual damage was inflicted upon him (Bromberg v. Signal Gasoline Corp., 130 Cal.App. 469, 20 P.2d 83), since the defendant's failure to perform a contractual duty is, in itself, a legal wrong that is fully distinct from the actual damages. The maxim that the law will not be concerned with trifles does not, ordinarily, apply to violation of a contractual right. Kenyon v. Western Union Tel. Co., 100 Cal. 454, 35 P. 75. Accordingly, nominal damages, which are presumed as a matter of law to stem merely from the breach of a contract (Ross v. Frank W. Dunne Co., 119 Cal.App.2d 690, 260 P.2d 104), may properly be awarded for the violation of such a right. Kenyon v. Western Union Tel. Co., supra. And, by statute, such is also the rule in California. Section 3360 of the Civil Code provides: 'Where a breach of duty has caused no appreciable detriment to the party affected, he may yet recover nominal damages.'

Recognizing these principles of law, defendant concedes that the failure of the trial court to award nominal damages by reason of his breach of the contracts constituted error. However, he takes the position that if plaintiff is to prevail on appeal he must show that an award of damages is necessary to conserve some permanent right, or that an award of nominal damages would carry costs.

While the general rule is that the failure to award nominal damages is not alone ground for reversal of a judgment or for a new trial (see Kenyon v. Western Union Tel. Co., supra; Strait v. Wilkins, 23 Cal.App. 774, 139 P. 911; Gray v. Southern Pacific Co., 21 Cal.App.2d 240, 247, 68 P.2d...