Arizona Power Co. v. Racine-Sattley Co.

LEWIS, J. This is an action of debt for the purchase price of certain wagons. The defense is breach of contract in the failure to deliver the wagons within the time agreed upon, and a counterclaim for damages therefor. After a trial before a jury, judgment was entered upon a general verdict in favor of the plaintiffs for the amount claimed, less certain agreed deductions, and for interest and costs. Prom the judgment, and the order overruling the motion for new trial, this appeal is prosecuted. The appellant urges a reversal upon the ground that the verdict and judgment is contrary to and not supported by the evidence in various enumerated particulars. Without stating the evidence, which could serve no useful purpose, it is sufficient to say that we have examined the record and find.that the verdict is clearly supported by the evidence in each particular specified. This court, therefore, will not disturb the verdict. Error is also alleged in the refusal of the trial court to admit evidence as to damage resulting from delay in delivery alleged to have been suffered through the increased cost of hauling of freight, for which purpose the wagons had been purchased. There is no evidence that facts were brought to the attention of the appellee prior to entering into the contract which would have even put it upon notice that such damage might result from a failure to promptly deliver the wagons. The argument seems to be that the very nature of the specifications for the wagons ordered differing from wagons in stock should have apprised the appellee of the use for which they were intended and of the damage to result from a failure in immediate delivery. There is no merit in the contention. That a few days’ delay in shipment of wagons for freighting purposes — even fifteen days or more, as appel [286] lant contends — should find hauling conditions so changed as to result in increasing the cost of transporting freight is unusual, and not to be anticipated. Such damage is special. The facts must be shown to have been brought to the attention of the seller, and it should reasonably appear that the seller entered into the contract contemplating that his default would probably entail the particular loss claimed before he is to be held responsible therefor. Globe Ref. Co. v. Landa Cotton Oil Co., 190 U. S. 540, 23 Sup. Ct. 754, 47 L. Ed. 1171; Central Trust Co. v. Clark, 92 Fed. 293, 34 C. C. A. 354; Moffitt-West Drug Co. v. Byrd, 92 Fed. 290, 34 C. C. A. 351; The defendant and appellant further contend that the trial court erred in failing to submit to the jury the issue of nominal damages. The case was tried upon the theory that the defendant had sustained substantial damage. The appellant made several requests for instructions upon that theory, which were allowed and given. It made no request for an instruction upon an issue of nominal damage. Even were there merit in the assignment, and we are of the opinion that there is none, the defendant having received and retained the wagons, and its only right upon the record being to offset damages sustained by reason of the delay in delivery, we would decline to consider the alleged error, as the record clearly discloses that the assignment presents a theory of the case different from that adopted by both parties and the court upon the trial. Tevis v. Ryan, ante, p. 282, 108 Pac. 461. As we have just pointed out, the error, if any, is technical. To have submitted the issue would merely have resulted in the reduction of the verdict by a nominal amount, assuming the issue to have been determined in favor of the appellant. Cases cited to the rule that where the issue of nominal damages might result in a verdict for the complaining party and carry costs have no application. The judgment of the trial court is affirmed. KENT, C. J., and DOAN and CAMPBELL, JJ., concur.