Winans v. Sierra Lumber Co.

Citations

• 66 Cal. 61
• 4 P. 952
• 1884 Cal. LEXIS 684

Syllabus

<p>New Tbial— Conflict of Evidence.—A verdict rendered upon substantially conflicting evidence should not be disturbed and a new trial granted, except for errors of law occurring at the trial.</p> <p>Instbuctions.—Instructions not prejudicial to the losing party, although erroneous, are no ground for reversal.</p> <p>Damages—Bbeach of Contbact—Contbibutoey Negligence.—In an action for damages for injuries arising out of contract or tort, a party cannot recover if the injuries were consequent upon his own contributory negligence. Every party to a contract must do all in bis power to prevent loss from a breach of contract by the other party, and if unable to prevent the loss altogether, must use reasonable exertions to make it as light as possible. If he permits the damages to be enhanced by his own wilfulness or negligence, the increased loss will fall upon him.</p> <p>Id.—Pabtial Bbeach of Contbact.—Where there is a partial breach of contract susceptible of more or less performance, the injured party may continue to. carry out the contract, reserving to himself a right of action for such damages as he may have sustained by the partial breach.</p> <p>Id.—Measube of Damages.—The plaintiff contracted to manufacture lumber, and the defendant agreed to purchase all that the plaintiff should manufacture at a stipulated price, and to furnish certain machinery for the work. The machinery proved insufficient and not in accordance with the contract, and the plaintiff was thereby prevented from manufacturing as much lumber as he otherwise would have done. JH'eld, that the measure of damages was the contract price of the lumber which he was so prevented from manufacturing, less the expense he would have incurred in manufacturing it, over and above the amount necessarily expended in manufacturing the. amount actually furnished by him.</p>