On Rehearing. The original judgment carried interest at 6 per cent. from May 6, 1929, when the action was commenced. This escaped our notice. It was not objected to and it was not our intent to effect any change in that respect.
We have become convinced of error in the reasoning on which we disposed of the trial court's finding that appellees had suffered $2,000 damages due to the withdrawal of the assistance of the mine owners in collecting miners' accounts. There is no evidence that Pick ever sought such assistance, or that his entering the field would have prevented a restoration of the situation if *Page 568 the supersedeas had not operated to continue the unlawful competition.
The contention here made was that there was no substantial evidence to support this finding. It is very meager. According to the showing, in May, when the assistance of the mine owners was withdrawn, there was an accumulation of bad accounts amounting to "not to exceed twelve hundred, one thousand to twelve hundred dollars." When appellees went out of business it had grown to "at least $4500." That is all.
It is apparent that the finding represents a mere estimate. We think it too high. Assuming that from May on appellees sold $3,500 of merchandise, for which they could collect nothing, the monthly average would be $368, amounting to $1,963 for the five and one-third months here involved. The evidence would suggest, however, that some of these bad accounts would have been created in the usual course of the business with the advantage formerly enjoyed.
It is the theory of appellees that damages in this class of cases are so much at large that the estimate of the trial court is practically controlling. The rule as to lost profits is necessarily liberal, as already stated. Still, we do not consider the damages as being at large, as if for pain and suffering. There must be a showing of actual loss. The liberality comes from necessity, to avoid the greater evil of leaving the injured party remediless against wrongdoing.
But it does not seem to us that the same rule is applicable to this item of claimed damage. Showing in detail sales made and actually entered upon the books, resulting in bad credits, is quite a different matter from showing sales not made but which might have been made but for the act of the wrongdoer. We greatly doubt, therefore, if the evidence should be deemed sufficient to support the court's estimate or any estimate on this account.
The point which really gives us the greatest concern is that our decision is a departure from the well-established practice of reviewing only for error of law, properly pointed out in the trial court and presented here; that we have really given to appellants and imposed upon appellees a trial de novo.
It is true that the contention on the part of appellants, both below and here, was not that the damages were excessive, but that the evidence warranted no damages. It was contended that the loss of profits for the period in question was shown to be due to two causes, for one of which — Pick's competition — appellants were not responsible; and that the proofs were therefore so uncertain that no more than nominal damages could be recovered.
However, in pursuing this point, there was disclosed what seemed to us an excessive award. As we viewed the matter, both counsel had claimed too much. The theory of appellees that the Pick competition was immaterial and should be disregarded, was as erroneous as the theory of appellants that it was fatal to any substantial recovery.
Ordinarily this court is content to examine the points here relied upon for reversal, *Page 569 if properly preserved at the trial, sustaining or overruling them. That is all appellants are entitled to as of right. But that does not limit the inherent power of this court to prevent fundamental injustice. Being convinced that the judgment was largely excessive, due to a failure to give any consideration to found facts which were material, deeming the case unusual, and an end of litigation desirable, to that end yielding something of form to substantial justice, without intending to relax the well-established principles of review, but rather making a virtue of necessity, we disposed of the case as we did.
While still unwilling to affirm the present judgment, we have concluded to make different disposition of the appeal. A more accurate award of damages will no doubt result, and we shall better conform to established practice, by restoring the case to the jurisdiction of the trial court as it stood at the close of the evidence. It will then be within his judicial discretion to make up new findings upon the present record or to reopen the case or grant a new trial, as justice may seem to require. State ex rel. Bujac v. District Court, 28 N.M. 28, 205 P. 716, Ortega v. Ortega (rehearing), 33 N.M. 605, 273 P. 925.
The judgment will be reversed, and the cause remanded with direction to vacate the judgment and findings, and to proceed in accordance herewith. It is so ordered.
SADLER, HUDSPETH, BICKLEY, and ZINN, JJ., concur.