Thayer v. Smith, 3119

• Decision Date: 23 April 1963
• Docket Number: No. 3119,3119
• Citation: 380 P.2d 852
• Parties: Carl A. THAYER and Carrie G. Thayer, Appellants (Plaintiffs below), v. Raymond SMITH, d/b/a Casper Trailer Sales, Appellee (Defendant below).
• Court: Wyoming Supreme Court

Page 852

380 P.2d 852

Carl A. THAYER and Carrie G. Thayer, Appellants (Plaintiffs below), v. Raymond SMITH, d/b/a Casper Trailer Sales, Appellee (Defendant below).

No. 3119.

Supreme Court of Wyoming.

April 23, 1963.

Robert A. Burgess, of Winter, Burgess & Forrister, Casper, for appellants.

J. F. Mahoney, of Mahoney & Murphy, Casper, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice HARNSBERGER delivered the opinion of the court.

Upon former appeal to this court, the judgment below was reversed and returned to the trial court for the sole purpose of having determined the amount in damages the defendant should be required to pay by reason of having wrongfully failed to issue unto plaintiffs a title for a trailer house purchased by plaintiffs from defendant. As said in that opinion, 'of course, plaintiffs could not recover for any losses they might have prevented by reasonable effort on their part.' Thayer v. Smith, Wyo., 357 P.2d 1115, 1119.

Plaintiffs claim actual damage of $1,661.57, punitive damages of $5,000, and $500 attorneys' fees. At pre-trial conference, defendant agreed $1,661.57 was the reasonable value of plaintiffs' expenses between the time when defendant should have provided the certificate of title and the time when defendant furnished the same, but defendant disputed such expenses were necessary if plaintiffs had made reasonable effort to minimize the loss.

The difficulty between the litigants arose when plaintiffs gave defendant a check bearing a notation 'including sales tax' in payment for a trailer house. Defendant wrote on the check 'Sales tax not included,' cashed the check and then told plaintiffs they must pay an additional $132 sales tax as required by state law before defendant would give plaintiffs the certificate of title necessary to enable plaintiffs to lawfully move the trailer house over the highways of the State. Plaintiffs refused to pay the $132 and defendant refused to give them the certificate of title. Whereupon, plaintiffs, on July 26, 1958, sought damages for defendant's failure to give them the certificate. Upon trial the court denied plaintiff any recovery, and plaintiffs appealed. This court reversed and remanded for trial on the sole issue of the amount of damages. On June 12, 1960, plaintiffs paid the $132 and defendant gave them the certificate of title. On August 17, 1961, trial was again had to the court which found there was no wilful or wanton conduct or malice on defendant's part; that $100 per month was the reasonable cost for rental of an adequate facility for plaintiffs' use during the period defendant failed to deliver plaintiffs the title certificate, but that plaintiffs by reasonable effort could have reduced that period to three months; that $100 was a reasonable allowance to cover plaintiffs' moving expenses; and that plaintiffs should be reimbursed the $132 paid defendant under protest, with interest at 7 per cent from June 12, 1960.

Thereupon, the court gave plaintiffs judgment for the total sum of $532 with interest on $132 at 7 per cent from June 12, 1960, and costs. Plaintiffs again appeal, claiming the court used an improper measure of damages; erred in finding no wilful or wanton conduct or malice on the part of defendant; and that the judgment was contrary to law and the evidence. However, appellants by their brief seem to have abandoned their contention respecting the court's finding of no wilful or wanton misconduct or malice and only argue: (1) Plaintiffs' failure to tender sales tax was improperly considered in assessing damages; (2) plaintiffs are entitled to damages from date they possessed trailer house; (3) the court erred in not granting their entire compensatory damages claim; (4) defendant failed its burden to prove plaintiffs could have mitigated damages; and (5) the mitigation required by court was unreasonable and oppressive.

Aside from quoting remarks made by the court, appellants present no argument in furtherance of their first contention, saying only, 'Ordinarily, a tender is required to prevent a party from being in default in a contract and has nothing to do with the assessment of damages in a suit for breach of contract,' and citing McHale v. Goshen Ditch Co., 49 Wyo. 100, 110, 52 P.2d 678, 681. A study of that case reveals nothing pertaining to the instant case unless it be the comment, 'Parties ought not to be permitted in such case to rush headlong into a lawsuit merely because the other party is in default. They should come into court as nearly free from blame as the circumstances permit. Their conduct may solve or minimize the strife.' This does not give appellant much comfort, but its wisdom is reflected by the general rule set forth in 25 C.J.S. Damages § 33, p. 499, 'there can be no recovery for losses which might have been prevented by reasonable efforts on the part of the person injured,' and the further statement at page 502, 'The efforts which the law requires of a person injured by a tort or a breach of contract to avoid what damages he can include the making of reasonable expenditures to such end.' William Goldman Theatres v. Loew's, D.C.Pa., 69 F.Supp. 103, review denied 3 Cir., 163 F.2d 241, affirmed 3 Cir., 164 F.2d 1021, certiorari denied 334 U.S. 811, 68 S.Ct. 1016, 92 L.Ed. 1742; Vining v. Smith, 213 Miss. 850, 58 So.2d 34. Although lack of funds may excuse efforts to lessen the injury, Valencia v. Shell Oil Co., 23 Cal.2d 840, 147 P.2d 558, a person is not required to make extraordinary expenditures requiring a disproportionate outlay in endeavoring to guard against the consequences of the wrongdoer's act. Commodity Credit Corporation v. Rosenberg Bros. & Co., 9 Cir., 243 F.2d 504, certiorari denied 355 U.S. 837, 78 S.Ct. 62, 2 L.Ed.2d 48; Fischer v. Hendler, 49 Cal.App.2d 319, 121 P.2d 792; Kleinclaus v. Marin Realty Co., 94 Cal.App.2d 733, 211 P.2d 582.

It is also well to remember that the trial court has considerable discretion as to matters to be considered in mitigation of damages, and where the offended party has succeeded in reducing the damages...