Double D Amusement Co. v. Hawkins

438 P.2d 811, 20 Utah 2d 395, 1968 Utah LEXIS 731

• Court: Utah Supreme Court
• Decided: March 22, 1968
• Docket: No. 10938
• Status: Published

Opinions

HENRIOD, Justice:

Appeal from a damage judgment incident to the rental of a music box to Hawkins, tavern owner. Affirmed, with no costs awarded.

'This case involves a five-year written contract, contemplating an equal share in any revenue produced by the machine. "Eight months later Hawkins arbitrarily removed the machine.

In' a previous trial the court concluded that Hawkins breached the contract and found that the monthly take of the contracting parties was $67.50 each.

This is a sequel suit which has to do with damages only, and it was stipulated that the conclusions reached in the first case would be included in this, the second.

The quantum and quality of this litigation, poignantly was expressed by the trial court at the end thereof when he remarked that “This isn’t one of those nice, clear cases that we often have, is it?” and that “This is a complicated case,” and that “I would hate to have to present it to a jury.” That was an understatement, but this court heartily agrees.

Both sides agree that speculative damages cannot be awarded and that damages must be mitigated, if possible. Hawkins says the attempted proof of damages here was speculative, but nevertheless must be mitigated, which seems to be some sort of inverted non sequitur.

Nonetheless, we can start out in this case with a cornerstone upon which to justify the trial court’s conclusion. The $67.50 per month figure over an eight-month period was based on tickets which logged the average monthly revenue for that period.

These were admitted in evidence without objection, which evidence was merged in this second suit. The trial court used this figure as a formula in projecting damages over the entire life of the contract. Applying the formula, the court, in .assessing the damages, deducted the expenses incurred by DD as reflected in proof thereof adduced at the trial, to calculate DD’s net, and therefore loss of profit.

Hawkins counters by saying that DD should mitigate the damages by re-renting the machine to someone else and deducting his profits therefrom from Hawkins’ obligation under the contract, which the latter wilfully breached. Carried to its logical conclusion, this would mean that DD would have to wait for the remainder of the 'five-year term before he could file suit and account to his defaulter for what damages he was entitled to after mitigation. This makes not much sense. There might be a duty to mitigate till time of suit, but to say one must mitigate for four years in the future is more speculative than the damages DD sought to be proved.

, Hawkins strongly urges that this machine made no profit for DD since the latter had 83 machines of different types, and the company made no profit on them. Using this approach the claim that DD should mitigate damages is somewhat vacuous. But this case involves only one of the machines and it was proved that this one machine did make a profit for eight months, —which individual machine is the only issue here. From Hawkins’ argument, a person who signed a contract like the one here, could use the machine for one day, breach the contract by throwing it out, then contend that DD had no cause of action under the instrument because the latter could- not recover for speculative damages that he had to prove thereunder.

The whole purpose of contracts such as this is to place the machine in a prime location which will produce maximum revenue, and any duty to mitigate would be to search out and spend time, energy and expense to do 'a possibly useless thing.

We think the trial court used the most sensible and fair approach here in measuring damages and we so hold.

TUCKETT, J., concurs.