Pacific Bridge Co. v. Oregon Hassam Co.

134 P. 1184, 67 Or. 576, 1913 Ore. LEXIS 222

• Court: Oregon Supreme Court
• Decided: September 16, 1913
• Status: Published

Opinion

Mr. Justice Moore

delivered the opinion of the court.

The hill of exceptions states that at the beginning of the trial defendant’s counsel objected and excepted to the introduction of any evidence by the plaintiff, on the ground that the complaint did not aver that any damages had resulted by reason of the alleged breach of the contract. It is maintained by plaintiff’s counsel that no exception was taken by the adverse party to the ruling of the court, and, this being so, the error thus assigned is not for consideration. The ruling upon the matter is not set forth; hut, since it appears that the testimony of plaintiff’s witnesses was received, it is reasonably to be inferred from the declaration in the bill of exceptions, to which reference has been made, that the objection was overruled' and an exception to the action of the court in this particular was taken.

1. When, at the commencement of a trial, objection is made to the introduction of any evidence by the plaintiff, on the ground that the complaint does not state facts sufficient to constitute a cause of action or suit, the challenge interposed assails the plaintiff’s primary pleading, the insufficiency of which is never waived, and the question is to he determined by the rules governing a demurrer: Sanders v. Soutter, 126 N. Y. 193 (27 N. E. 263); Kain v. Larkin, 141 N. Y. 144 (36 N. E. 9); Herbert v. Duryea, 87 Hun, 288 (33 N. Y. Supp. 1031).

2. If the complaint alleges the making of an executory contract the terms of which have been broken by. one of the parties and merely avers that the breach has resulted in damages to the plaintiff, the latter allegation is sufficient to let in proof of the general damages'sustained: Sedgwick, Damages (9 ed.), § 1257; Hadley v. Prather, 64 Ind. 137; Wilson v. Clarke, 20 Minn. 367 (Gil. 318); Sunnyside Land Co. v. Willamette Bridge Ry. Co., 20 Or. 544 (26 Pac. 835); Dobbins v. Edmonds, 18 Mo. App. 307; Johnson v. Gilmore, 6 S. D. 276 (60 N. W. 1070).

In Ketchum v. Van Dusen, 11 App. Div. 332 (42 N. Y. Supp. 1112), a case cited by plaintiff’s counsel, it was held tbat a complaint for a breach of contract need not allege in terms that the plaintiff had been damaged, where it stated facts from which damages naturally flowed, and demanded judgment for a certain sum.

3. The general rule governing the recovery of damages for the breach of an executory contract is that, where a party engaged in the execution of an agreement is wrongfully prevented by the other party from complying with the terms of the contract, the usual relief in such a case is recompense to the plaintiff for the part accomplished and indemnity for the loss occasioned by the part unperformed: Young v. Stickney, 46 Or. 101 (79 Pac. 345); Friedlander v. Pugh, 43 Miss. 111 (5 Am. Rep. 478). In the case cited and relied upon herein the complaint .stated in effect that the plaintiff performed labor for, and furnished material to, the defendant pursuant to an oral agreement by the terms of which the defendant stipulated to lease to him a farm upon which he moved, but that the defendant refused to execute to him the demise. Based on these facts, the plaintiff undertook by the action to obtain recompense only for the labor and material and not to recover for any loss occasioned by a breach of the agreement. Though the form of that action was undoubtedly assumpsit, which is a remedy for the recovery of damages for the nonperformance of a parol agreement, the relief there sought was not indemnity for the loss occasioned by the breach of the contract, and for that reason the action was not for the recovery of damages within the generally accepted meaning of that term.

4. The complaint herein does not aver that in consequence of the breach of the agreement the plaintiff sustained any damages, but charges that by reason of the facts alleged in the initiatory pleading the defendant became indebted to the plaintiff, etc. The defect in the complaint in this particular renders it insufficient to sustain a judgment for damages, though a witness for plaintiff testified in respect to the loss claimed, to have been occasioned by the breach of the contract: Bohall v. Diller, 41 Cal. 532.

As the complaint can be amended so as to cure the imperfection referred to, the judgment is reversed and a new trial ordered. Reversed.

Mr. Chief Justice McBride and Mr. Justice Ramsey concur. Mr. Justice Burnett dissents.