Ivinson & Co. v. Althrop , 1 Wyo. 71 ( 1872 )

By the Court,

Fisher, C. J.

The first part which presents itself to this court, in accordance with the- line of argument pursued by the counsel on both sides of this case, is whether the court below erred in overruling the defendant’s.(in the court below) demurrer. Of this there cannot be any doubt when we consider the office of a demurrer. Mr. Chitty, in his work on pleading, than which there is no higher authority, lays down the maxim that a general demurrer goes to the whole of the declaration, or in this territory the petition, so that if a general demurrer be filed to the declaration or petition, in order to sustain the demurrer, the declaration or petition must be defective in every part, and if the plaintiff in the action has set out in his petition, any one cause of action which can be sustained by the evidence, however defective his petition may be upon other points, the defective parts must be met by a special, and not by a general demurrer. On the subject of a change of venue, we find no provision in the civil code of this territory, authorizing a party to an action to apply for this remedy, except what is provided for in section 59 of the code of civil procedure of this territory, which is where it is provided:

“That if a party to an action shall make affidavit that he believes that from the bias, prejudice or partiality of the judge, he cannot get a fair and impartial trial, the court shall change the place of trial to some other district; or for the convenience of parties, the judge may request the judge of some other district to try the action in the county where the suit is pending.”

Now, in this case there was no such affidavit made, and of course it was not obligatory on the court below to order such change, hence we can discover no error in this respect. The most important error assigned by the plaintiff in error or defendant below is, that the court erred in sustaining the plaintiff’s (in the court below) objection to evidence offered by the defendants below on the question of the measure of damages.

It depends upon what view the court below took as to what established the measure of damages. If the court held, as it appears to have done, that the written contract determined the measure of damages, it would have been enough to have permitted the written contract to have been proven, and then to have allowed the plaintiff below to have shown that its terms had been broken by the defendants, and then to have instructed the jury that the measure of damages was settled by the contract itself, and if so, no other evidence should have been allowed, except to show some circumstance by which it could be made to appear that the contract had been broken by some act of the plaintiff below. The exception to the charge of the court below on the subject of its instructions is somewhat of the same nature of the general demurrer. We think that the exception to the charge of the court should be not to the-whole charge, hut to some specific portions of it, unless it was wrong in every part, and this we presume will not be claimed. In the fourth of Neman’s Eeports, page 310, it was held that a general exception to a charge of the court containing distinct propositions is unavailing, unless the party excepting show that each proposition is erroneous. In the same case the court of appeals of the state of New York held that a general objection to the charge is not sufficient, the objection must be to some specific point of the charge.

In this case we fail to see that the charge is erroneous in any one of the propositions.

On the subject of the measure of damages, it was held in a case cited in Sedgwick on the Measure of Damages, page 412, that an action was brought on a written contract; the defaulting party to the instrument agreed to forfeit the sum of eight hundred dollars, fixed and settled damages; that the words of the contract were held to be too express to be questioned, and the land not having been conveyed according to the terms of the contract the sum was treated as liquidated damages. The same doctrine was held in the courts of Massachusetts and several of the other states. The question of actual damages is one that often becomes quite difficult to determine, and in the case under consideration this difficulty, seems to present itself. A party is justified in claiming damages not only on actual loss of outlay but for a failure to realize anticipated profits; and while it would be impossible to estimate the exact amount of damages sustained by the breach of the contract, there is a rule established by the contract itself which, from the definiteness of its terms, appears to have been clearly understood by the parties when the contract was signed, hence the jury were relieved of the labor of ascertaining the actual amount by parol evidence; and Ave are of the opinion that the court beloAV Avas right in its instructions to the jury to take the contract as liquidated damages.

It is held by the counsel for the defendant in error that notwithstanding the instructions may have been wrong in some particulars, yet if substantial justice was done that then the verdict should not be disturbed. This doctrine is so well established that we deem it useless to enlarge upon it here; but we do not apprehend the necessity of applying the principle to this case, inasmuch as the verdict is fully justified upon the terms of the contract.

The judgment is affirmed.