This is an appeal from a judgment of non-suit, and an order refusing a new trial.
We have carefully examined the record, and all the authorities cited by counsel. The complaint alleged that the plaintiff was in possession of certain lands involved in this controversy, but did not aver that he had ever lost possession thereof, therefore it was not competent to introduce proof tending to show the value of the rents and profits of such land, as a foundation for a judgment against the defendant for the loss of its possession.
No special damages were pleaded, hence the evidence offered of expenses, attorney fees, etc., which were not the proximate result of the violation of the contract, or which in the ordinary course of things would not have been likely to result therefrom, was property excluded.
*539The trust alleged was not proved by competent and legal evidence, as the written agreement, which was the only legal proof of its existence, offered did not tend to establish it.
The court did not abuse the discretion vested in it by law in refusing the plaintiff’s application to amend his complaint. The trial had been in progress for several days, the plaintiff was fully advised" early in the course of the proceedings that the defendant considered the complaint defective, and the latter made that fact evident by repeated objections to the introduction of evidence tending to prove damages claimed to have been suffered by the former.
It is plain that a continuance would have been the result had leave been granted to amend, which result would not have been caused by any fault of the defendant. (Graham v. Stewart, 68 Cal. 374.)
But the plaintiff claims that it was his right to have the jury pass upon the question, whether or not, upon the evidence before them of a breach of contract, he was entitled to a verdict for nominal damages.
We think the evidence did show a violation by the defendant of his contract with the plaintiff to permit the latter to redeem certain lands sold at tax sale, the former having possession of the certificates of such sale at the time the contract was entered into, such redemption to take place within a certain specified time.
Although the record does not show that any proof was offered which was admissible under the pleadings, that any actual damages were suffered by the plaintiff from the breach of the contract on the part of the defendant, yet as the contract was proved to have been violated, the former was entitled to have the jury determine, upon a proper charge of the law by the court, whether or not they would render a verdict for nominal damages in his favor. And if they had returned a verdict for the plaintiff for nominal damages, a judgment therefor would *540have been proper. (Browner v. Davis, 15 Cal. 9, 11; Sedgwick on Measure of Damages, 7th ed., 71, 72, note b, and cases cited.) The judgment of nonsuit was therefore wrong, and the court should have granted a new trial upon the plaintiff’s motion.
The judgment carried with it the right of the defendant by legal process to enforce payment from the plaintiff, or satisfaction by sale of his property, of the sum of $232.90, recovered by the former against the latter for costs.
To that extent the plaintiff’s rights were prejudiced. But it is apparent from the record that the plaintiff upon a new trial would not be entitled to anything more than a judgment for nominal damages, which, while it would relieve him of the payment of costs to the defendant, would not give him the right to enforce the payment of his own costs from the latter.
For these reasons, we are of the opinion that the order denying a new trial should be reversed, unless the defendant will remit the sum of $232.90, which he has recovered for his costs, etc., against the plaintiff, but upon that being done by the defendant, the ordér should be affirmed.
The appeal from the judgment, not having been taken within the statutory period of time, cannot be considered.
Searls, C., and Belcher, C. C., concurred.
The Court.For the reasons given in the foregoing opinion, the appeal from the judgment is dismissed. Order reversed, unless defendant within thirty days remits the sum of $232.90, which being done, the order shall stand affirmed. Said remittance to be filed with the clerk of this court.
Rehearing denied.