Southwestern Cotton Seed Oil Co. v. Stribling

Opinion of the court by Hainer, J.: This action was founded on the breach of án oral contract, and it devolved upon the plaintiff to prove by a preponderance of the evidence the following material facts: (1) That an oral contract was entered into between the plaintiff and defendant, as alleged in the petition : (2) That there was a breach of said contract, in this, that the defendant failed to supply a sufficient quantity of water for the plaintiffs’ cattle, pursuant to the contract: (3) That in consequence of such breach the cattle became sick, and deteriorated in value, and that by reason thereof the plaintiff sustained damages. Among the errors assigned and argued by the plaintiff - in error is that the court erred in its charge to the jury as to the measure of damages. On this branch of the case the court instructed the jury as follows: “And as to the measure of damages which the plaintiff would be entitled to recover in this case, if he is entitled to recover any, you are instructed that the measure of damages, or the amount which the plaintiff would- be entitled to recover is the amount which will compensate him for all of the *421 detriment proximately caused by the failure of the defendant to furnish water, if you find that it failed to furnish it, whether the injury could have been anticipated or not.” This instruction was evidently based upon section 2637 of the statutes of 1893, which provides as follows: “For the breach of an obligation not arising from con-' tract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate for all the detriment proximately caused thereby, whether it could have been anticipated or not.” But this section of our statute has no application to an action founded upon a breach of a contract. This provision of the law is applicable to actions arising in tort. Sections 2618 prescribes the general rule as to the measure of damages in an action based upon the breach of a contract, and is as follows: “Eor the breach of an obligation arising from contract, the measure of damages, except where otherwise expressly provided by this chapter, is the amount which will compensate the party aggrieved for all the detriment proximately caused thereby, or which, in the ordinary course of things, would be likely to result therefrom. No damages can be recovered for a breach of contract, which are not clearly ascertainable in both their nature and origin.” It will thus be seen that the instruction of this court ■was clearly inapplicable to the case, and, in fact, was in con-, flict with the theory upon which the case was tried to the jury. The court should not only have instructed the jury as ' to the statutory measure of damages applicable to this action, *422 but he should, in addition thereto, have charged the jury as to the elements of damages which were recoverable. In Willet v. Johnson, 13 Okla. 563, Mr. Justice Pancoast, speaking for the court, states this rule in the following language: “We think that in every damage suit, the court ought to furnish the jury a rule by which to measure and fix the damages, and this rule ought to cover the diffenent elements for which compensation may be awarded.” We think the instruction in this case was misleading, and that the entire charge to the jury failed to prescribe a rule whereby the jury could clearly ascertain and fix the measure of damages recoverable if they found the issues for the plaintiff: Hence, we think that the instruction was clearly erroneous, and requires a reversal of the cause. Other errors are assigned and argued, but we deem it unnecessary to consider them, as a new trial must be awarded. The judgment of the court below is reversed, and the cause remanded, with directions to grant a new trial. Burwell, J., who presided in the court below, not sitting; all the other Justices concurring.